Citation Nr: 1324760 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 11-13 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a right hip disorder, to include as secondary to a service connected right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1945. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). A transcript of this hearing has been added to the record. 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. An October 2008 Board decision denied the Veteran's claim for entitlement to service connection for a right hip disorder, to include as secondary to a service connected right knee disability. The Veteran was notified of this determination that same month, along with his appellate rights, and he did not appeal the decision. 2. Evidence added to the record since the October 2008 Board decision is cumulative and redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right hip disorder, to include as secondary to a service connected right knee disability. CONCLUSIONS OF LAW 1. The October 2008 Board decision is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2008). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right hip disorder, to include as secondary to a service connected right knee disability. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, this information must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The AOJ informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his claim in a February 2009 letter issued prior to the initial unfavorable July 2009 rating decision which gave rise to this appeal. This letter also advised the Veteran of the basis for the prior final denial and the evidence needed to reopen the claim, as required by Kent v. Nicholson, 20 Vet. App. 1 (2006). He was also informed of the evidence and information necessary to substantiate his underlying service connection claims. Additionally, the Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to VA. The Veteran was also provided with notice of the type of evidence necessary to establish a disability rating and effective date as was discussed in the Dingess case in the February 2009 letter. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The U. S. Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's April 2013 hearing, the undersigned Veterans Law Judge identified the issue on appeal and asked the Veteran about any treatment for the hip disability at issue; why the Veteran thought that his right hip disability was related to the service connected right knee disability [he specifically testified at this hearing in response to a query from the undersigned as to whether he believed that he injured his right hip during service that he did not have a right hip disability during service and was only claiming entitlement to service connection for a right hip disability as secondary to service connected right knee disability. April 25, 2013, hearing transcript, page 9]; and whether any medical professional had provided an opinion as to the etiology of the disability at issue to ensure that all relevant records were obtained. The Veteran provided testimony as to the symptoms and history of his right hip disability, thereby demonstrating actual knowledge of the ability to identify and submit additional relevant evidence. Further, he was provided with notice of the information and evidence that is necessary to substantiate his claim in the February 2009 letter. The duties imposed by Bryant were thereby met. Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran testified to the undersigned that he has not received any private treatment for his right hip (April 25, 2013, hearing transcript, page 4) and has not otherwise identified any additional, outstanding records that could be obtained but have not been requested or obtained. In this regard, while he testified to the undersigned that he has been told by a physician on at least two different occasions that he has a right hip disability as a result of his service connected right knee disability, he could not remember if such had been put "in writing" and otherwise did not identify the existence of a medical record that would support his secondary service connection claim with enough specificity to allow for a meaningful search for the existence of such a record. The Board notes that the duty to assist is not a "one way street," and that when it is the Veteran that has the "information that is essential in obtaining the putative evidence," the Veteran cannot "passively wait" for the assistance of the VA. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board finds that there is no reasonable possibility that remanding this claim to obtain any additional treatment records would aid in substantiating this claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Finally, while the Veteran was not provided with a VA examination, the duty for such does not arise until new and material evidence has been submitted. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(iii). Thus, as the Board will determine below that the Veteran has not submitted new and material evidence, there is no duty to provide the Veteran with a VA examination in this case. Id. Accordingly, VA has satisfied the notification and duty to assist provisions of the VCAA and no further actions need be undertaken on the appellant's behalf. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). As to the claim being decided herein on appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file contains the transcript from the April 2013 hearing-a copy of which has been physically added to the claims file-but does not otherwise contain any evidence or correspondence pertinent to the matter at hand not physically of record). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases, such as arthritis, which develop to a compensable degree (10 percent for arthritis) within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases (such as arthritis) listed under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires: (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439(1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board in an October 2008 decision denied the Veteran's claim for service connection for a right hip disorder, to include as secondary to a service connected right knee disability. As a notice of appeal was not filed as to that issue, the decision became final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2008). As the October 2008 Board decision is final, new and material evidence must be received to reopen the claim for service connection for a right hip disorder to include as secondary to a service connected right knee disability. 38 U.S.C.A. § 5108 The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue relates to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. "New" evidence is defined as evidence not previously submitted to agency decision-makers. "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). For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminating the concept of a well-grounded claim). In Shade v. Shinseki, 24 Vet. App. 110, 120 (2010), the Court interpreted the phrase 'raises a reasonable possibility of substantiating the claim' as "enabling rather than precluding reopening." The Court held that 38 C.F.R. § 3.159(c)(4)(iii) does not require new and material evidence as to each previously unproven element of a claim. See Shade, 24 Vet. App. at 120. The evidence of record at the time of the October 2008 Board decision included the service treatment reports which were negative for any diagnosis of or treatment for symptoms associated with a right hip disorder. Subsequent to service, a VA radiology report dated in January 1996 shows that X-rays of the right hip revealed that the right hip joint appeared to be normal. A VA joints examination report dated in June 1998 shows that the Veteran did not have any discomfort of the right hip during physical examination. There was no diagnosis associated with the right hip. A VA joints examination report dated in January 1999 shows that the Veteran denied any major problems with the right hip; again, there was no diagnosis associated with the right hip. A VA joints examination report dated in October 2007 shows that the Veteran reported a five to six year history of right hip pain that increased with walking. He reported having had the right hip joint replaced, but the examiner noted that the records show that it had been the left hip joint that was replaced. X-rays revealed mild narrowing or injury aspect of the right hip joint with no osseous abnormality to degenerative change identified; very minimal arthritic changes were identified. The impression was very mild osteoarthritis of the right hip. The examiner explained that the mild arthritis in the right hip was not related to his status post right knee total knee replacement and there was no evidence in the medical literature indicating total knee replacement caused arthritis of the hip of the same side. Also of record at thee time of the October 2008 Board decision were VA outpatient treatment reports dated through January 2008. The record at the time of the October 2008 Board decision also included the transcript from a March 2008 Board hearing at which time the Veteran asserted that he had a right hip disorder that was secondary to his service-connected right knee disability. He testified that hat he did not hurt his right hip in service but was told by his treating physician that his right hip disorder was due to his right knee disability. He could not, however, provide the name of the treating physician who provided him with this opinion. The Board notes that the record was held open for an additional 60 days for the Veteran to obtain such opinion; however, he did not submit any additional evidence prior to the October 2008 Board decision. In denying the claim, the Board found in its October 2008 Board decision that the preponderance of the evidence showed that the Veteran's right hip disability was not present during service or for many years thereafter and was not related to service or an incident of in-service origin, to include the service connected right knee disability. As support for this decision, it was noted that the evidence did not show that the Veteran was ever diagnosed with a right hip disorder during service; that the Veteran himself acknowledged that he had not sustained a right hip disorder during his period of active service; and that the first competent medical evidence of record of a right hip disorder, specifically very mild osteoarthritis of the right hip, was not until the October 2007 VA examination, which was more than 62 years following separation from service. The Board also noted that there was no competent medical evidence of record to suggest that the Veteran had a right hip disorder during his period of active service, or that there was a nexus between service and the right hip disorder. Also noted by the Board in the October 2008 decision was the fact that there was no competent medical evidence of record that the Veteran was diagnosed with arthritis of the right hip within one year following his separation from service, thereby precluding service connection based upon the presumption for chronic diseases, such as arthritis, under 38 C.F.R. §§ 3.307. The Board also found the October 2007 opinion to be probative and definitive as to the issue of whether the Veteran's right hip disability was secondary to his service connected right knee disability. Also determined by the Board was that the Veteran was not competent to provide an opinion linking his right hip disability to the service connected right knee disability, or directly to service. Evidence received since the October 2008 Board decision consists of VA outpatient treatment reports dated through January 2011, principally for complaints not involving the right hip. None of these reports relate a right hip disability to service or the service connected right knee disability. A May 2008 VA outpatient treatment report not previously of record noted complaints of pain in the right knee and thigh. The examination at that time revealed a full range of motion in the right hip without pain. A June 2008 VA physical therapy clinic note indicated that the Veteran was referred for exercises for right quadriceps and hamstring weakness. Also of record is the Veteran's April 2013 hearing testimony, wherein he repeated his assertions made at his prior hearing; namely, that he had a right hip disorder that was secondary to his service-connected right knee disability and was not related to service, and that he had been told by physicians that his right hip disorder was due to his right knee disability. Again, however, he could not provide sufficient detail, such as who these physicians were or when they related his right hip disability to service, to allow for a meaningful search for any records that might support this assertion. In the instant case, the record since the October 2008 Board decision reveals no evidence or statements that raise a reasonable possibility of substantiating the claim; as such, the Board must find that new and material evidence has not been received to reopen the claim for service connection for a right hip disorder to include as secondary to a service connected right knee disability. 38 C.F.R. § 3.156(a). In making this determination, while some of the VA outpatient treatment records are new to the extent that they were not previously of record and considered by the Board in 2008, they are not material evidence as they do not relate to an unestablished fact necessary to substantiate the claim. The medical treatment records show, at most, the existence of a right hip disability (a fact not in dispute at the October 2008 Board decision) but do not in any anyway suggest that such disability is the result of service or service connected right knee disability, to include on the basis of aggravation by way of an altered gait pattern caused by his right knee as essentially contended by the Veteran at the hearing before the undersigned. (April 25, 2013, hearing transcript, pages 5-6). It is this "nexus" to service or service-connected disability that was not established at the October 2008 Board decision, and remains so even with review of the record added since that decision. See Cox v. Brown, 5 Vet. App. 95 (1993) (records showing treatment years after service which do not link the post-service disorder to service in any way are not considered new and material evidence). With regard to Veteran's April 2013 testimony, the credibility of such testimony must be presumed for the purposes of determining whether the claim may be reopened. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This testimony essentially is largely repetitive of that presented at the March 2008 hearing, thus not representing "new" evidence. To the extent it is considered new, the matter of whether an orthopedic disability such as the one involving the Veteran's right hip may be attributed to another disability or an incident, symptomatology, or pathology that may have occurred in service is a complex medical matter beyond the expertise of a layperson such as the Veteran. Kahana, Woehlaert, supra. As such, the lay testimony is not new and material evidence. Moray v. Brown, 5 Vet. App. 211(1993) (lay assertions on medical causation do not constitute material evidence to reopen a previously denied claim). In short as the Board concludes, even under the relaxed evidentiary standards of Shade, that new and material evidence has not been received, the criteria for reopening the claim seeking service connection for right hip disorder to include as secondary to a service connected right knee disability are not met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). ORDER New and material evidence having not been received, the claim to reopen the previously denied claim of entitlement to service connection for a right hip disorder, to include as secondary to a service connected right knee disability, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs