Citation Nr: 1319865 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-26 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for hypertension. 2. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for a bilateral knee disability. 3. Entitlement to service connection for a bilateral knee disability. 4. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for a bilateral foot fungus condition, claimed as bilateral toe onychomycosis. 5. Entitlement to service connection for a bilateral foot fungus condition, claimed as bilateral toe onychomycosis. 6. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for bilateral otitis media. 7. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for a leg length discrepancy. 8. Whether new and material evidence has been submitted to reopen the issue of entitlement to service connection for allergic rhinitis/upper respiratory condition. 9. Entitlement to a rating greater than 10 percent disabling for a lumbar spine disability prior to August 3, 2011. 10. Entitlement to a rating greater than 20 percent disabling for a lumbar spine disability beginning August 3, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2007, June 2009, and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified at a February 2013 videoconference hearing by the undersigned, a transcript of which is associated with the claims file. The record was held open for 30 days following that hearing so that the Veteran could submit additional evidence. In the December 2007 rating decision and subsequent procedural documents, the RO addressed the claims for service connection for a bilateral knee disability and allergic rhinitis/upper respiratory condition on the merits. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen claims for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In submitting his July 2009 VA Form 9, the Veteran perfected an appeal as to his claims for entitlement to service connection for a cervical spine disability, a right ankle disability, and a left ankle disability. Subsequently, those claims were granted in the August 2012 rating decision. As the full benefit sought on appeal has been granted, these issues are not before the Board. However, at the February 2013 Board hearing, the Veteran's expressly indicated that the Veteran did not disagree with the August 2012 rating decision, but rather, wanted to file a new claim for an increased rating for his bilateral ankle disabilities. As the Board does not yet have jurisdiction over these claims, the issues of entitlement to an increased rating for a right ankle disability and entitlement to an increased rating for a left ankle disability are referred to the RO for the appropriate action. The issue of entitlement to service connection for hypertension, and the reopened issues of entitlement to service connection for a bilateral knee disability and for a bilateral foot fungus condition 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. At his February 2013 Board video hearing, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the issues of entitlement to service connection for bilateral otitis media, entitlement to service connection for allergic rhinitis/upper respiratory condition, and entitlement to increased ratings for a lumbar spine disability. 2. A June 1998 rating decision denied service connection for a bilateral knee disability, bilateral foot fungus condition, and leg length discrepancy; within the one-year appellate period, the Veteran did not express disagreement with these denials, and VA did not physically or constructively receive documentation constituting new and material evidence. 3. Evidence submitted since the June 1998 rating decision raises a reasonable possibility of substantiating the Veteran's claims for service connection for a bilateral knee disability and a bilateral foot fungus condition, but does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for leg length discrepancy. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the issue of entitlement to service connection for bilateral otitis media have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for the withdrawal of the issue of entitlement to service connection for allergic rhinitis/upper respiratory condition have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 3. The criteria for the withdrawal of the issue of entitlement to increased ratings for a lumbar spine disability have been met. 38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 4. The June 1998 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 5. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral knee disability is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 6. Evidence submitted to reopen the claim of entitlement to service connection for a bilateral foot fungus disability is new and material, and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 7. Evidence submitted to reopen the claim of entitlement to service connection for a leg length discrepancy is not new and material, and 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). October 2007 and July 2011 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 Veteran was also notified 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 his claims in the October 2007 letter. See Kent v. Nicholson, 20 Vet. App 1 (2006). The Veteran's service treatment records and VA medical treatment records have been obtained; the Veteran has not identified any private treatment records pertinent to his appeal. 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). With respect to the claims being decided in this decision, the November 2007 VA examination was adequate for rating purposes, as it conducted a complete physical examination and recorded the Veteran's medical history and symptoms; although the VA examiner did not provide an opinion with respect to the hypertension claim, there were no questions of medical fact posed by the record that required such an opinion to be given. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although a VA examination was not conducted with respect to the Veteran's claims for service connection for hypertension, or to reopen the issue of entitlement to service connection for leg length discrepancy, VA is not required to obtain an examination for a claim to reopen a finally decided decision. See 38 C.F.R. § 3.159(c). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his 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) 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 determinations and noted the elements of the claims that were lacking. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim; he specifically indicated to the appellant that certain types of evidence, including lay evidence, could potentially assist his claim, and indicted that any evidence that might better provide a lay subjective should be submitted. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims 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 that 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). Withdrawn Claims The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the claimant or the claimant's authorized representative. 38 C.F.R. § 20.204(a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b) (1). A December 2007 rating decision declined to reopen the Veteran's claim for service connection for bilateral otitis media, reopened but denied the Veteran's claim for service connection for allergic rhinitis/upper respiratory condition, and granted only a staged and partial increase in the assigned rating for the Veteran's service-connected lumbar disability. The Veteran perfected an appeal as to these issues in July 2009, but at his February 2013 Board hearing, requested withdrawal of his appeal as to these issues. As the pertinent criteria are satisfied, there remain no allegations of errors of fact or law for appellate consideration. The Board consequently does not have jurisdiction to review the appeal with respect to these issues, and they are dismissed. New and Material Evidence Claims Pertinent procedural regulations provide for reopening a claim of service connection that 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. 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 Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. Service connection for a bilateral knee disability, bilateral foot fungus condition, and leg length discrepancy was denied in a June 1998 rating decision. Within one year of this determination, the Veteran did not express disagreement with these denials, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). As such, the June 1998 rating decision is final. Bilateral Knee, Foot Fungus The basis of the prior final denial with respect to the claims for service connection for a bilateral knee disability and a bilateral foot fungus condition was the RO's finding that neither condition was shown in service, and that the evidence did not relate either condition to service. Evidence submitted and obtained since the June 1998 rating decision raises a reasonable possibility of substantiating the Veteran's claims, to include the November 2007 and June 2012 VA examination reports addressing the onset of the Veteran's knee pain, and the Veteran's February 2013 Board hearing testimony as to the onset of his toenail fungus. Accordingly, the Veteran's claims for service connection for a bilateral knee disability and for a bilateral foot fungus condition must be reopened. Leg Length Discrepancy The basis of the prior final denial with respect to the claim for service connection for leg length discrepancy was that the condition was congenital and/or developmental, and as such, service connection could not be granted. Evidence submitted and obtained since the June 1998 rating decision includes an April 2007 VA treatment record wherein a VA clinician notes that the leg length discrepancy affects his job and ability to perform activities, and the Veteran's February 2013 VA Board hearing testimony that the leg length discrepancy was first diagnosed in service. [The November 2007 and June 2012 VA examination reports do not address the leg length discrepancy.] While new, this evidence is not material as it does not raise a reasonable possibility of substantiating the Veteran's claim. The effect of the Veteran's leg length discrepancy on his job and ability to perform activities is irrelevant to whether or not it existed during service or is otherwise related to service. The Veteran's assertion that the leg length discrepancy was first diagnosed in service is cumulative of a fact that was documented in the service treatment records, and thus already of record at the time of the June 1996 rating decision. As new and material evidence to reopen a finally disallowed claim has not been submitted, the appeal is denied. ORDER The appeal as to the issue of entitlement to service connection for bilateral otitis media is dismissed. The appeal as to the issue of entitlement to service connection for allergic rhinitis/upper respiratory condition media is dismissed. The appeal as to the issue of entitlement to increased ratings for a lumbar spine disability is dismissed. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a right and left knee disability is reopened, and to that extent only, the appeal is granted. New and material evidence having been submitted, the Veteran's claim for entitlement to service connection for a bilateral foot fungus condition is reopened, and to that extent only, the appeal is granted. New and material evidence not having been submitted, the appeal to reopen the Veteran's claim to service connection for leg length discrepancy is denied. REMAND At the June 2012 VA joints examination, the VA examiner concluded that the Veteran's bilateral knee disability was less likely than not incurred in or caused by his claimed in-service injury, based on his not being provided any service treatment records showing a diagnosis of or treatment for knee problems. However, the Veteran testified at his February 2013 Board hearing that he fell during a confidence course during service, sustained a knee injury at that time, and experienced knee pain from that point through the remainder of his service. The VA examiner appears to not have considered that the Veteran's statements as to his bilateral knee injury during service, which the Board finds credible, are lay evidence as to the occurrence of the in-service knee injury. The Veteran also testified that he was treated for his knee condition at the Denver VA Medical Center in the early 1980s. Accordingly, remand is required so that an addendum opinion and outstanding VA treatment records may be obtained. The Veteran also testified at the February 2013 Board hearing that he first experienced toenail fungal infection during service in Germany in 1989 and 1990, and was treated at sick call. Although the Veteran's service treatment records do not confirm those sick call visits, toenail fungal infection is a condition easily identified by lay persons. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Further, the lack of contemporaneous documentation does not rule out the possibility that such symptomatology existed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Finally, although the November 2007 VA examiner found no infection or inflammation of the Veteran's feet on examination, records from 2009 through 2011 from a military facility show that the Veteran was repeatedly treated for a toenail fungal infection. On these bases, remand is required so that a medical opinion as to the relationship between the in-service manifestation of toenail fungal infection and the Veteran's current bilateral foot fungus condition can be obtained. Finally, to date the Veteran has not been afforded a VA examination to determine whether his hypertension is related to or had its onset in service or developed within a year of his discharge from active duty. As the Veteran pointed out at his February 2013 Board hearing, in a September 2008 opinion, the a VA examiner stated that it was more likely than not that the Veteran's sustained hypertension increased his risk of his later heart conditions, citing the February 1995 elevated blood pressure reading of 150/115. Further, in August 2012, the same examiner opined in a treatment record that the Veteran's heart disease should be service-connected because hypertension "was evident in his military records." These suggest a nexus between the Veteran's hypertension and service; as such, VA's duty to assist by providing a medical examination is triggered. The threshold for finding a link between current disability and service is low for the purposes of providing a medical examination. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the issue of entitlement to service connection for hypertension, and the reopened issues of entitlement to service connection for a bilateral knee disability and for a bilateral foot fungus condition are REMANDED for the following actions: 1. Obtain all outstanding records from the Denver VA Medical Center from the 1980s pertaining to the Veteran's reported treatment of a knee injury or disability at that facility. Document all attempts to secure this evidence in the claims file. If the records cannot be obtained, the RO should notify the Veteran as to the unavailable records, and explain the efforts taken to obtain them. Give the Veteran an opportunity to respond. 2. After associating any outstanding treatment records with the claims file, either in physical or electronic format, forward the Veteran's claims file to a VA examiner for an opinion as to the etiology of the Veteran's toenail fungal condition. The service treatment records, VA and private treatment records, and lay statements to include the February 2013 Board hearing testimony should be reviewed. Thereafter, the examiner should opine as to whether it is at least as likely as not that the Veteran's currently diagnosed bilateral foot fungus condition is related to his military service, to include whether the initial infection about which the Veteran testified in February 2013 was the onset of his current condition. In offering this opinion, the examiner must acknowledge and discuss the Veteran's competent and credible report of recurrent skin problems affecting his toenails since service. All opinions should be supported by a clear rationale, which should include a discussion of the specific evidence on which the opinion is based. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Forward the Veteran's claims file to a VA examiner and ask that he or she review it. After that review, the examiner should state whether the Veteran's diagnosed bilateral knee disability is at least as likely as not related to service. If the examiner finds that one or both of these questions cannot be answered without physically examining the Veteran, a VA examination should be scheduled. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for a VA examination to determine the onset and/or etiology of his hypertension. After examination of the Veteran and review of the entire claims file, the examiner should state whether it is at least as likely as not that the Veteran's hypertension is related to or had its onset in service or developed within one year of his discharge. In offering this opinion the examiner must acknowledge and discuss the assessments offered in September 2008 and in August 2012 by the VA examiner. A complete rationale for all findings and conclusions should be set forth in a legible report. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After undertaking the development above, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his 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 he receives further notice; however, he 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs