Citation Nr: 1316756 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 12-07 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for left knee arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran served from March 1951 to March 1953. The matter now on appeal comes before the Board of Veterans' Appeals (Board) on appeal from the July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied the Veteran's petition to reopen a previously denied claim for entitlement to service connection for left knee arthritis, finding that no new and material evidence had been submitted. 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). FINDINGS OF FACT 1. In an April 2009 decision, the RO denied entitlement to service connection for left knee arthritis, to include as secondary to a service-connected disability; the Veteran did not file a notice of disagreement. 2. Additional evidence received since the RO's April 2009 decision is new to the record, but does not relate to an unestablished fact necessary to substantiate the merits of the claim, and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The April 2009 RO decision is final. 38 U.S.C.A. § 7105 ( West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. New and material evidence has not been received since the April 2009 rating decision, and the claim of service connection for left knee arthritis is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on a claim for VA benefits. Kent v. Nicholson, 20 Vet. App. 1 (2006), established additional requirements with respect to the content of VA notice for claims to reopen. The Court held that the VCAA requires VA to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence and information would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. The Court further held that the failure to provide notice of what constitutes material evidence in this context would generally be the type of error that has the natural effect of producing prejudice because it would constitute a failure to provide a claimant notice of a key element of what it takes to substantiate a claim to reopen. In March 2011, a VCAA letter was issued to the Veteran with regard to his claim to reopen. Such letter complied with the notice requirements in Kent. The VCAA letter notified the Veteran of what information and evidence is needed to reopen his claim of service connection, what information and evidence is needed to substantiate his claim of service connection, the information and evidence that must be submitted by the claimant, the information and evidence that will be obtained by VA, and the information and evidence necessary to establish a disability rating and effective date. Thereafter, another VCAA notice was issued to the Veteran in August 2011. Collectively, the contents of these notices fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have records of post-service treatment the Veteran has received at the Cleveland VA medical center (VAMC). The Veteran has further been given the opportunity to submit evidence and he has provided written statements in support of his claim. Otherwise, the Veteran has not identified, and the record does not indicate, existing records pertinent to the claim that need to be obtained. The Veteran underwent a VA examination in connection with his claim in March 2009. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although another VA examination has not been provided in connection with this claim, the Board notes that the duty to provide an examination does not apply to a claim to reopen a finally adjudicated claim without the receipt of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As discussed in detail in the analysis section, the Veteran's claim for entitlement to service connection has not been reopened; thus, an examination is not required. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue in appellate status. II. Criteria & Analysis The Board notes that even if the RO determined that new and material evidence was received to reopen the claim, or that an entirely new claim was received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Veteran has had the opportunity to present evidence and argument in support of his appeal. There is no indication that the Board's present review of the claim will result in any prejudice to him. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105, and the claim may only be reopened through the receipt of "new and material" evidence. In the April 2009 decision, the RO denied entitlement to service connection for left knee arthritis; the Veteran did file a notice of disagreement, thus such decision is final. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The Veteran's request to reopen his claim of service connection for left knee disability was received in February 2011, and the regulation applicable to this appeal provides that new and 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. 38 C.F.R. § 3.156(a). 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. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran contends that his current left knee arthritis was incurred in service, and/or secondary to his service-connected right knee disability. Establishing service connection generally 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become manifest to a degree of 10 percent or more within one year of leaving qualifying military service. 38 C.F.R. §§ 3.307(a)(3); 3.309(a) (2012). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In April 2009, the RO denied entitlement to service connection for left knee arthritis on the basis that the evidence did not show that the left knee disability was incurred in service or related to a service-connected disability. The Veteran did not file a notice of disagreement, thus the April 2009 decision is final. 38 U.S.C.A. § 7105. The evidence of record at the time consisted of service treatment records, multiple VA examination reports and VA outpatient records, the March 2009 VA examination report, and the Veteran's lay assertions. While the service treatment records reflect the Veteran's complaints of, and treatment provided for, the lower leg muscle region and the right knee, these records are silent for any complaints or notations of, or treatment for the left knee. Clinical records dated in 1952 reflect that the Veteran was treated on several occasions for a traumatic rupture of the anicus tibialis muscles which had originally been operated on in September 1951. While an August 1952 clinical record appears to indicate that the Veteran was diagnosed with a left knee injury, this appears to be a typographical error, as subsequent clinical records, also dated in August 1952, describe in detail treatment provided for the Veteran's medial meniscus injury in the right knee. These records indicate that the Veteran injured his right knee in June 1952 while stationed in Korea, and further reflect a diagnosis of internal derangement of the right knee. Moreover, the remainder of the records are clear for any mention of a left knee injury. Furthermore, while the clinical evaluation of the lower extremities was shown to be abnormal at the March 1953 separation examination, in the Notes section, the medical examiner indicated that the abnormalities were specific to the Veteran's bilateral leg muscles and right knee. There is nothing in the record to show that the Veteran had any problems in his left knee upon separation from service. Post-service records reflect that the Veteran filed a claim for service connection for his right knee disorder and the muscle injuries in his lower legs in February 1957. A VA examination was conducted in March 1957, but primarily focused on the Veteran's right knee and lower extremities, and was absent any mention or evaluation of the left knee. Service connection was granted for the Veteran's residuals of fascial repair in both legs, muscle herniation, and rated noncompensably disabling, effective January 30, 1957. See March 1957 rating decision. [The March 1965 rating decision granted separate compensable ratings for the Veteran's muscle hernia in the lower extremities, effective from February 23, 1965.] The Veteran underwent additional VA examinations in April 1965 and April 1970, but these examinations dealt with the severity of the his service-connected muscle hernias in the lower extremities, and were also clear for any mention of the left knee. VA outpatient records dated from March 1989 to January 2000 are devoid of any complaints or diagnoses of, or treatment for the left knee, and instead center on complaints of, and treatment provided for, the right knee disorder. During a majority of these treatment visits, the Veteran continually relayed a history of right knee trouble since injuring his right knee in service, but never mentioned or described any symptoms associated with the left knee. Also, physical examination of his left knee was clear for any abnormalities during the November 1999 VA treatment visit. During a June 2000 follow-up examination, the Veteran was assessed with degenerative joint disease (DJD) of the knees. The Veteran was afforded a VA examination in connection to his claim for service connection for the right knee disorder in April 2001, at which time the VA examiner noted that the Veteran had arthritis in both knees. However, the Veteran primarily complained of on-going problems in the right knee and the lower legs and the physical examination focused on these bodily regions. Indeed subsequent VA outpatient records (dated from October 2004 to April 2005) and VA examination reports (dated in February 2005 and August 2005) were also clear for any complaints or mention of left knee trouble. In the October 2005 rating decision, the RO granted service connection for the right knee disorder, evaluating it as 20 percent disabling, effective January 12, 2000. During a December 2008 consultation, the VA physician, Z. M., M.D., noted that the Veteran presented with symptoms of pain and swelling in the right knee joint. According to Dr. M., the Veteran had previously been seen six months prior for similar complaints associated with left knee. Dr. M. further noted that the Veteran exhibited a good response after undergoing a left knee aspiration and steroid injection in April 2008, with no recurrence since. On physical examination, Dr. M. did observe signs of clicking in the lower knees, but no evidence of locking, giving way, or falls. Dr. M. further reviewed an August 2007 x-ray of the right and left knee, the findings of which revealed chondrocalcinosis of both knees, moderate to marked degenerative arthritis changes and osteophytes formation of both knees. In January 2009, the Veteran filed a claim for service connection for arthritis in the left knee, to include as secondary to a service-connected disability. He was afforded a VA examination in connection to this claim in March 2009. The examiner noted that the Veteran had a previous right knee injury which led to the development of traumatic arthritis. The examiner further noted that the Veteran currently had arthritis in the left knee and experienced pain, soreness, an aching sensation and tenderness in both knees. Based on his discussion with, and evaluation of the Veteran, the examiner diagnosed the Veteran with arthritis of the left knee and concluded that it was unlikely that the Veteran's left knee arthritis was related to his right knee. According to the VA examiner, the Veteran's left knee arthritis was "rather a naturally occurring phenomenon." In the April 2009 rating decision, the RO denied entitlement to service connection for left knee arthritis on the basis that the evidence of record did not relate the Veteran's left knee condition to his military service or service-connected disability. In February 2011, the Veteran filed a petition to reopen his claim for entitlement to service connection for left knee arthritis. In support of his claim to reopen, the Veteran has submitted lay statements relating his current left knee condition to service and/or to his service-connected right knee disorder. Specifically, the Veteran has asserted that his current left knee disorder was either directly related to service or secondary to his altered gait - something he attributes to his already service-connected right knee disorder. See Statements of Veteran, dated in February 2011 and December 2011. In addition to lay statements in support of his claim, the Veteran has also submitted medical evidence reflecting continued treatment for his left knee. An August 2011 operative report reflects that the Veteran was admitted to the Cleveland VAMC where he underwent a left total knee arthroplasty. Subsequent progress notes indicate that he was doing well post-surgery, and began receiving on-going treatment, care and therapy following his surgery. In an August 2011 opinion, the Veteran's physician, M.A., M.D., noted that the Veteran was currently status post left total knee arthroplasty and doing well in his post operative course. According to Dr. A., based on his review of the Veteran's history and medical record, "it is difficult to determine with any degree of medical certainty that there is any correlation between the status of his right knee and deterioration of his left knee and ultimate need for surgical intervention." The remainder of the VA treatment records, which have been scanned into the Virtual VA claims processing system, reflect on-going treatment for the left knee, and demonstrate some level of improvement following the arthroplasty. The Veteran denied experiencing any pain in the left knee at the September 2011 VA physical therapy session. During an October 2011 physical therapy session, the Veteran described his left knee condition as "good" and stated that he was "close to 90 - 100 [percent] better since beginning PT [physical therapy]." In November 2011, the Veteran stated that his left knee was "coming along" and "much better than before his surgery." After a review of the evidence mentioned above, the Board finds that new and material evidence relating to the Veteran's claim for service connection for left knee arthritis, to include as secondary to a service-connected disability, has not been received, and the claim may not be reopened. The majority of this evidence is new in that it was not previously before agency decision makers. However, none of this evidence is material for purposes of reopening the service connection claim. The new medical evidence does not suggest that the Veteran's left knee arthritis originated in, or is in any way related to military service, nor does it indicate that the Veteran's left knee arthritis is secondary to his service-connected right knee disability. The statements by the Veteran attributing left knee disability to right knee dysfunction and resulting gait disturbance is presumed credible, but is not competent evidence of a relationship; lay evidence is not competent to determine the cause of orthopedic disease that resulted in his left knee replacement. Thus, the new evidence fails to overcome the threshold determination at the crux of the April 2009 decision: that the left knee arthritis was neither incurred in nor caused by military service, or due to a service-connected disability. As noted above, the evidence previously of record included service treatment records which did not reflect the presence of chronic left knee disability, and post-service treatment records, which predominantly focused on treatment for, and evaluations of, the Veteran's service-connected bilateral lower extremity and right knee disorders. While the March 2009 VA examiner evaluated the Veteran's left knee and recorded his symptoms, he still concluded that the left knee arthritis was not related to the service-connected right knee disorder, but was rather a naturally occurring phenomenon. As noted above, the evidence received since the April 2009 denial includes ongoing treatment for the left knee disorder and further reflects that the Veteran underwent a total left knee arthroplasty to help alleviate his symptoms. However, this information does not tend to prove the Veteran's claim in a manner different from what was already shown in April 2009 and which was evident in the Veteran's earlier contentions and lay statements he submitted, and treatment records dating from June 2000. In that connection, the Board acknowledges the Veteran's contentions that his left knee arthritis was either etiologically related to service or secondary to his service-connected right knee disorder. However, the Board notes that the record does not contain any medical evidence to suggest a link between the Veteran's current condition and service, to include a service-connected disability. The fact remains that the Veteran was not found to have any left knee problems during service and at the time of his separation from active duty, and he has submitted no evidence to contradict such a finding. While the August 2011 VA report issued by Dr. A. did not state with certainty that the Veteran's left knee arthritis was not related to his service-connected right knee disorder, it did not suggest that the Veteran's claimed disorder was related to service and/or a service-connected disability. The report cited to the difficulty in arriving at an opinion and was neither favorable nor unfavorable to the Veteran's claim. The report did not suggest a nexus relating the Veteran's claimed disorder to service or a service-connected disability. Consequently, the Board finds that the new evidence differs from what was previously of record, but substantively shows the same thing. In other words, with respect to what is required to show a relationship to military service and/or a service-connected disability, it is cumulative of what was previously known. The Board thus concludes that the evidence received since the April 2009 rating decision is not new and material. As noted in 38 C.F.R. § 3.156(a), 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. In this case, the information added to the record since the April 2009 denial is cumulative and does not prove any salient point beyond what was already shown in April 2009. The Board has also considered and acknowledged assertions made by the Veteran and his representative that his left knee arthritis is related to a service-connected disability. However, these were his contentions previously, and the record does not establish that he has the medical training necessary to offer competent opinions on matters of medical diagnosis or etiology. As such, his statements do not amount to new and material evidence. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). As noted in 38 C.F.R. § 3.156(a), 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. Under the circumstances described above, the Board concludes that new and material evidence relating to the Veteran's claim for entitlement to service connection for left knee arthritis, to include as secondary to a service-connected disability, has not been received; hence, the requirements to reopen the claim for entitlement to service connection for left knee arthritis have not been met, and the appeal must be denied. (As new and material evidence to reopen the finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).) ORDER As new and material evidence has not been received to reopen the claim of service connection for left knee arthritis, the appeal is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs