Citation Nr: 1311690 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-36 294A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability and if so, whether entitlement to service connection for a left knee disability is warranted. 2. Entitlement to an increased rating for a low back disability, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a hearing before the Board in October 2012. The issue of entitlement to an increased rating for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Service connection for a left knee disability was denied by a December 2003 rating decision. The Veteran was notified of that decision in December 2003, but did not appeal the denial. 2. The evidence received since the December 2003 rating decision raises a reasonable possibility of substantiating the claim for service connection for a left knee disability. 3. The Veteran does not have a left knee disability which is attributable to active duty service. CONCLUSIONS OF LAW 1. New and material evidence to reopen a previously denied claim of service connection for a left knee disability has been received. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. The Veteran's left knee disability is not the result of disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the Veteran is harmless because of the thorough and informative notices provided throughout the adjudication and because the Veteran had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the Veteran, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in two letters dated January 2008. The Veteran was advised in one of the January 2008 correspondences that his claim for a left knee disability was previously denied because there was no evidence that a left knee disability was incurred in or caused by service. The correspondence also told the Veteran what constitutes new and material evidence and also advised him of the elements necessary to establish service connection on a direct basis. That document satisfied the notice requirements as defined in Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has been given ample time to respond to that notice and provide evidence that relates to the previously unestablished facts. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the October 2011 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The Veteran has not referred to any additional, unobtained, relevant, available evidence. In attempts to reopen previously denied claims for service connection, the duty to assist does not include provision of a medical examination or opinion, unless new and material evidence has been secured. 38 C.F.R. § 3.159 (c)(4)(iii) (2012). However, in this case, the Veteran was afforded a VA examination to assess his claim. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. New and Material Evidence The Veteran originally submitted a claim of entitlement to service connection for a left knee disability in May 2003. The claim was denied by the RO in December 2003. Notice of the denial and notice of appellate rights were provided in December 2003. The Veteran did not initiate an appeal and the RO's decision consequently became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). As a result, service connection for a left knee disability may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no new and material evidence has been offered, that is where the analysis must end. Butler v. Brown, 9 Vet. App. 167 (1996). Evidence is considered new if it was not of record at the time of the last final disallowance of the claim. 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. Finally, 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence before VA at the time of the prior final denial consisted of the Veteran's service treatment records, treatment records from Palmetto Imaging, Shaw Air Force Base, Columbia Neurological Associates, and VA examination reports dated in September 1987, February 2002, and September 2003. The service treatment records do not reflect any reports, findings, or treatment for a left knee disability. Clinical examination of the Veteran's lower extremities was normal at his January 1987 separation examination. A January 1987 report of medical history form prepared in conjunction with the separation examination reflects that Veteran reported swelling in his knees secondary to exercise which he self-treated with wraps and rest. The record from Palmetto Imaging includes a July 1995 magnetic resonance imaging (MRI) of the left knee which includes a diagnosis of joint effusion, torn patellar retinacula, and partial tear of the medial head gastrocnemius. Treatment records from Shaw Air Force Base reveal that the Veteran reported chronic knee pain in February 1997. He was noted to be two years status post arthroscopic surgery with continued chronic knee pain since that time. The records from Columbia Neurological Associates do not include any reference to a left knee disability. The VA examination reports are all unrelated to the claimed left knee disability. The RO initially denied the claim in a December 2003 rating decision. The basis of the denial of the claim was that there was no evidence that the claimed left knee disability was incurred in or caused by his active duty service. The Veteran submitted a claim to reopen his claim for service connection for a left knee disability in December 2007. Evidence associated with the claims file since the final prior denial consisted of VA outpatient treatment reports dated from January 2007 to June 2012, additional private treatment reports from Shaw Air Force Base, private treatment reports from Sumter Orthopaedic Associates, Colonial Family Practice, Tuomey Healthcare System, Lexington Heart Clinic, VA examination and addendum reports dated in August 2006, June 2007, January 2008, September 2009, February 2010, April 2010, June 2010, July 2011, August 2011, and May 2012, and the Veteran's testimony from a hearing held before the Board in October 2012. Because the evidence received since the prior denial was not previously of record, and because it addresses specifically the issue before the Board, the Board finds that the new evidence is material. 38 C.F.R. § 3.156 (2012). Since the final prior denial, the Veteran has submitted testimony that his left knee symptomatology has continued since his service. The Veteran is competent as a lay person to provide testimony regarding continuity of symptoms and self-treatment. Barr v. Nicholson, 21 Vet. App. 303 (2007) (where a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that is medical in nature and is capable of lay observation). Additionally, the evidence shows treatment for and diagnoses related to the claimed disability. Consequently, the Board concludes that the evidence is neither cumulative nor redundant, and that it raises a reasonable possibility of substantiating the claim. Accordingly, the claim for service connection for a left knee disability is reopened. The claim for service connection for a left knee disability will be addressed below. III. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In the alternative, where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition, service connection can be granted for that chronic disability. The evidence must be medical unless it relates to a condition where lay observation is competent. 38 C.F.R. § 3.303(b) (2012). If chronicity is not applicable, service connection may still be established if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). As noted above, the service treatment records do not reflect any reports, findings, or treatment for a left knee disability. Clinical examination of the Veteran's lower extremities was normal at his January 1987 separation examination. A January 1987 report of medical history form prepared in conjunction with the separation examination reflects that Veteran reported swelling in his knees secondary to exercise which he self-treated with wraps and rest. A 1995 MRI report includes a diagnosis of left knee joint effusion, torn patellar retinacula, and partial tear of the medial head gastrocnemius. The treatment reports from Shaw Air Force Base reflect that the Veteran had a diagnosis of degenerative joint disease of the left knee in August 1996 and underwent a left meniscectomy in August 1996. The Veteran reported chronic knee pain in February 1997. He was noted to be two years status post arthroscopic surgery with continued chronic knee pain since that time. The other treatment reports from the various providers reflect diagnoses of left knee arthritis as early as March 2008. The VA examination and addendum reports dated in August 2006, June 2007, January 2008, February 2010, April 2010, June 2010, July 2011, August 2011, and May 2012 are unrelated to the Veteran's claimed left knee disability. At a September 2009 VA examination, the Veteran reported that he had knee pain in service while packing parachutes and standing for long periods of time. He indicated that he had arthroscopic surgery on his left knee after service and he reported constant knee pain. Following a physical examination including x-rays, the examiner diagnosed left knee degenerative joint disease, left knee medial meniscal derangement, and left knee mild chondromalacia. The Veteran's claims file was not available at the time of the examination and the examiner did not render an etiological opinion at that time. In a February 2010 addendum opinion, the September 2009 extensively reviewed the claims file and the VA examiner opined that it is less likely than not that the Veteran's left knee disability is related to active service. The examiner's rationale is that although the Veteran provided a credible history of left knee pain since 1969, there was no supporting evidence that he had a chronic condition. Although the Veteran self-treated his knee with wraps, there was no surgical intervention until many years after discharge. At an October 2012 hearing before the Board, the Veteran testified that he served as a parachute rigger in service for more than twenty years which required him to bend over to stuff parachutes into packs which put pressure on his left leg. He indicated that he never injured his left knee during service but he believed the repetitive motion of pushing parachutes into bags caused his left knee problems. He testified that he never injured his knee after service but ultimately had to have a knee surgery. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a left knee disability. The Board acknowledges that the Veteran is competent to report that he experienced left knee pain since service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion that his left knee disability is related to his active duty service is insufficient to provide the requisite etiology of the current left knee disability because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004) (layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his left knee disability being related to his active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The only medical opinion of record, that of the September 2009 VA examiner in the April 2010 addendum report, found that it was less likely than not that the Veteran's current left knee disability was caused by or as a result of the Veteran's active duty service. That opinion is more probative as to the etiology of the Veteran's left knee disability as the examiner reviewed the entire claims file and provided a rationale to support the opinion based on that examiner's medical training and expertise. Additionally, the Veteran has not submitted any competent evidence which provides a basis for the conclusion that arthritis manifested within one year of his separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that a left knee disability is etiologically linked to the Veteran's active duty service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a left knee disability and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The application to reopen a claim of entitlement to service connection for left knee disability is granted. Entitlement to service connection for a left knee disability is denied. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim of entitlement to an increased rating for a low back disability can be reached. The Veteran was last afforded VA examination to assess his claim for an increased rating for a low back disability in July 2011. Although the Veteran has not alleged that the symptomatology of his low back disability has increased in severity, he has indicated that the objective findings reported at the July 2011 examination do not correlate to his symptomatology and that his currently assigned rating does not accurately compensate the severity of his disability. Moreover, the examination is almost two years old. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate rating of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Because the July 2011 examination is somewhat stale, the Board finds that a more current examination is needed in this case. Additionally, VA outpatient treatment reports dated through June 2012 are associated with the claims file. It is not clear whether any additional VA treatment records exist. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain such records should be made. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any VA treatment reports dated after June 2012. If the Veteran identifies any other relevant medical records, those records should also be obtained. 2. After obtaining the above records, schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability The claims folder should be reviewed by the examiner, and the examination report should reflect that review. The VA examiner should specifically address the following: a) Provide complete ranges of motion of the lumbar spine. b) Describe any neurological impairment resulting from the service-connected low back disability. c) Indicate whether intervertebral disc disease is present and if so, state the length of time during the past twelve months that the Veteran has had incapacitating episodes due to his service-connected low back disability. Incapacitating episodes are periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. 3. Then, readjudicate the claim. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs