Citation Nr: 1317935 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 10-26 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen the issue of entitlement to service connection for lumbar spine degenerative joint disease. 2. Whether new and material evidence has been received to reopen the issue of entitlement to service connection for hemorrhoids. 3. Whether new and material evidence has been received to reopen the issue of entitlement to service connection for rhabdomyolysis. 4. Entitlement to service connection for irritable bowel syndrome. 5. Entitlement to service connection for a disability manifested by bilateral leg pain. 6. Entitlement to an increased rating for residuals of an injury to Muscle Group III, currently rated as 20 percent disabling. 7. Entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling. 8. Entitlement to an increased rating for a left knee disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from May 2000 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2009 and October 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified at a March 2011 Board hearing held by the undersigned held sitting at the RO. A transcript of that hearing is associated with the claims file. In a November 2012 statement, the Veteran asserted entitlement to service connection for an acquired psychiatric disability. That issue is referred to the RO for the appropriate development. A rating decision sent to the Veteran in May 2006 denied service connection for irritable bowel syndrome; the accompanying notice letter informed her of her appellate rights. Within the one-year appeal period, the Veteran did not submit a notice of disagreement, or documentation constituting new and material evidence with respect to the denied claim. Thus, the rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The claim was denied because the evidence did not show a diagnosis of irritable bowel syndrome in service, or a diagnosis of irritable bowel syndrome after service, only a diagnosis of abdominal pain of an unknown site. However, in December 2006, clinical records from Evans Army Community Hospital dated during the Veteran's military service were associated with the claims file. Review of these records reveals that the Veteran was treated for gastrointestinal symptomatology on several occasions. Although these appear to have been visits made in conjunction with her 2001 pregnancy, it is beyond the purview of the Board to determine whether the symptomatology was related to the pregnancy or some other cause. Colvin v. Derwinski, 1 Vet. App. 171 (1991). On that basis, the issue of entitlement to service connection for irritable bowel syndrome must be reconsidered. The issues of entitlement to service connection for irritable bowel syndrome, entitlement to service connection for a disability manifested by bilateral leg pain, entitlement to an increased rating for residuals of an injury to Muscle Group III, entitlement to an increased rating for a right knee disability, and entitlement to an increased rating for a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. A December 2007 Board decision denied service connection for residuals of rhabdomyolysis; the Veteran did not timely appeal that decision to the Court of Appeals for Veterans Claims. 2. Evidence submitted since the final December 2007 Board decision does not raise a reasonable possibility of substantiating the Veteran's claim. 3. January and May 2006 rating decisions denied service connection for lumbar spine disability; the Veteran did not submit a notice of disagreement, or documentation constituting new and material evidence, within the one-year appeal period. 4. Evidence submitted since the final 2006, rating decisions does not raise a reasonable possibility of substantiating the Veteran's claim. 5 A May 2006 rating decision declined to reopen the issue of entitlement to service connection for hemorrhoids; the Veteran did not submit a notice of disagreement, or documentation constituting new and material evidence, within the one-year appeal period. 6. Evidence submitted since the final May 2006 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim. CONCLUSIONS OF LAW 1. The December 2007 Board decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. Evidence submitted to reopen the claim of entitlement to service connection for residuals of rhabdomyolysis is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The 2006 rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 4. Evidence submitted to reopen the claims of entitlement to service connection for lumbar spine disability is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 5. The January 2006 rating decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 6. Evidence submitted to reopen the claim of entitlement to service connection for hemorrhoids is not new and material; the claim is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). April 2009, July 2009, and September 2009 letters satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The April 2009 letter notified the Veteran of the regulations pertinent to claims to reopen based on the submission of new and material evidence and of the specific evidence required to reopen her claims. See Kent v. Nicholson, 20 Vet. App 1 (2006). The Veteran's service treatment records, VA medical treatment records, and identified private medical records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). The May 2009, August 2009, and February 2010 VA examinations were adequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As noted above, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that was lacking to substantiate the claim for benefits, specifically, that the evidence had not established continued entitlement to a higher ratings and/or service connection, or been sufficient to reopen the Veteran's claims. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and the Board can adjudicate the claims based on the current record. Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). New and Material Evidence Claims Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108. If new and material evidence has been submitted, and VA's duty to assist has been fulfilled, then the Board may proceed to evaluate the merits of the claim. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Hemorrhoids A rating decision sent to the Veteran in January 2006 declined to reopen the issue of entitlement to service connection for hemorrhoids; the Veteran did not timely file a notice of disagreement with that decision or submit documentation constituting new and material evidence within the one-year appeal period. Thus, the rating decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The claim was denied because the evidence submitted since the last final rating decision in January 2003 did not constitute new and material evidence as to the hemorrhoids noted at entrance into service, were aggravated by service. Evidence received since the January 2006 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim. A May 2008 VA outpatient record notes the Veteran's report that she has had chronic hemorrhoids since her 2001 pregnancy, with bright red blood from the rectum 5 to 6 times per year. VA surgical notes indicate that the Veteran underwent a hemorrhoidectomy in April 2009; June 2009, July 2009, and August 2009 VA treatment record noted that the Veteran was seen for follow-up of her hemorrhoid surgery, but reported no rectal bleeding, or rectal pain, even with having regular bowel movements. Private treatment records dated from October 2009 to March 2010 from the Audubon Hospital note that the Veteran had previously undergone hemorrhoid surgery. Further, the February 2010 VA examiner noted that the Veteran's May 2000 entrance examination showed hemorrhoids as a condition noted on entrance to service, and the Veteran's report that she has not had any hemorrhoids since her April 2009 surgery. The Veteran's contentions are essentially cumulative of those which prompted her original claim, and the treatment records simply reflect treatment for hemorrhoids up until her April 2009 hemorrhoid surgery. They do not address the issue of a preexisting hemorrhoid disability or whether the disability was aggravated by the Veteran's military service. Accordingly, this evidence is not new and material, as it does not raise a reasonable possibility of substantiating the Veteran's claim. As new and material evidence to reopen a finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni, supra. Thus, the appeal to reopen the Veteran's claim is denied. Lumbar Spine Service connection for a lumbar spine disability was denied in a January 2006 rating decision, and subsequently confirmed in a May 2006 decision. The Veteran was informed of her appellate rights. Within the one-year appeal period, the Veteran did not submit a notice of disagreement, or documentation constituting new and material evidence with respect to the denied claim. Thus, the decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The claim for service connection was denied because a back disability was not shown in service, and the evidence did not establish a relationship between the Veteran's back disability and her military service or between the back disability and her service-connected knee disabilities. Evidence received since the May 2006 rating decision does not raise a reasonable possibility of substantiating the Veteran's claim. VA treatment records simply show the post service treatment for back complaints. Notably, an October 2009 indicated a new onset of pain that month secondary to a work-related injury. This evidence simply reiterates that the Veteran experiences back pain in conjunction with her back disability, a fact already of record at the time of the May 2006 rating decision. The records do not, however, address the issue of nexus, either on a direct or proximate basis. Accordingly, this evidence is not new and material, as it does not raise a reasonable possibility of substantiating the Veteran's claim. As new and material evidence to reopen a finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Thus, the January 2006 rating decision remains final, and the appeal is denied. Rhabdomyolysis A December 2007 Board decision denied service connection for rhabdomyolysis; the Veteran did not timely appeal that decision to the Court of Appeals for Veterans Claims. Thus, the Board decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The claim was denied because the evidence showed that the Veteran's rhabdomyolysis did not have its onset in service and was not related to service, but rather, had its onset after service and/or was a manifestation of the chest muscle strain for which service-connection was already in effect. Evidence received since the December 2007 Board decision does not raise a reasonable possibility of substantiating the Veteran's claim. Private treatment records from the Audubon Hospital note that the Veteran was treated for chest pain in October 2009 and March 2010; those records reflect her report that she had experienced it off and on since 2000. Records from the Veteran's employer, the United States Postal Service, reflect treatment and follow-up for residuals of rhabdomyolysis in October 2004; these records note that the Veteran was first seen for rhabdomyolysis in October 2002, after service. VA treatment records dated in September 2007 noted that the Veteran called to report fatigue, weakness, cold sweats, and a concern about muscle disease with a history of rhabdomyolysis. Other private treatment records from February 2010 and March 2010 records show that the Veteran's chest pain was described as costochondritis and determined to be both from the chest wall and benign in nature. None of these records reflect that the Veteran's rhabdomyolysis first onset during service or was otherwise related to service, or indeed, that she currently has the condition. Accordingly, this evidence is not new and material, as it does not raise a reasonable possibility of substantiating the Veteran's claim. As new and material evidence to reopen a finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not applicable. Annoni, supra. Thus, the appeal to reopen the Veteran's claim is denied. ORDER New and material evidence not having been submitted, the appeal to reopen the veteran's claim for entitlement to service connection for hemorrhoids is denied. New and material evidence not having been submitted, the appeal to reopen the veteran's claim for entitlement to service connection for a lumbar spine disability is denied. New and material evidence not having been submitted, the appeal to reopen the veteran's claim for entitlement to service connection for rhabdomyolysis is denied. REMAND During her March 2011 Board hearing, the Veteran testified that she had been receiving treatment for her Muscle Group III injury residuals, gastrointestinal symptoms as claimed manifestations of irritable bowel syndrome, bilateral leg pains, and her right and left knee disabilities at the Louisville VA Medical Center. Review of the record does not show that these records are associated with the claims file. Remand is required so that these records can be obtained. Accordingly, these matters are REMANDED for the following actions: 1. Obtain all outstanding records from Louisville VA Medical Center relating to the treatment of the disabilities at issue, dated since May 2010. Any additional relevant private records of treatment as the Veteran may identify while the case is in remand status also should be sought. 2. After undertaking the development above, and any additional development as may become indicated upon review of the records obtained, including conducting VA examinations, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and her representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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