Citation Nr: 1326919 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 13-00 864 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for left total knee replacement (left knee disorder) as secondary to service-connected right knee disability, and if so, whether secondary service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim for service connection for lumbar disc disease as secondary to service-connected right knee disability, and if so, whether secondary service connection is warranted. 3. Entitlement to service connection for bilateral hand numbness. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1967 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which reopened service connection for left knee and lumbar disc disease disorder and denied (on the merits) the claims currently on appeal. FINDINGS OF FACT 1. An unappealed June 2007 Board decision denied service connection for left knee disorder, to include as secondary to service-connected right knee disability, and service connection for lumbar disc disease, to include as secondary to service-connected right knee disability, finding that the preponderance of the evidence weighed against a finding of a nexus between the Veteran's left knee and low back disabilities and his service-connected right knee disability. 2. The Veteran did not appeal the June 2007 Board decision. 3. The evidence received since the June 2007 Board decision relates to an unestablished fact of a nexus to service-connected right knee disability that is necessary to substantiate the claim for service connection for left knee and lumbar disc disease disorders. 4. The Veteran has currently diagnosed left knee degenerative joint disease and degenerative disc disease of the lumbar spine. 5. The Veteran's left knee and lumbar disc disease disorders are not causally related to or permanently worsened by the service-connected right knee disability. 6. The Veteran's bilateral hand numbness is not causally related to or permanently worsened by any service-connected disability. CONCLUSIONS OF LAW 1. The June 2007 Board decision, which found that the preponderance of the evidence weighed against a nexus between the Veteran's left knee and low back disabilities and his service-connected right knee disability, became final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The evidence received subsequent to the June 2007 Board decision is new and material to reopen service connection for left knee disorder and lumbar disc disease disorders. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The criteria for service connection for a left knee disorder as secondary to service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 4. The criteria for service connection for lumbar disc disease disorder as secondary to service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 5. The criteria for service connection for bilateral hand numbness have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claims; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that, in a claim to reopen a previously finally denied claim, VCAA notice must notify the claimant of the meaning of new and material evidence and of what evidence and information (1) is necessary to reopen the claim; (2) is necessary to substantiate each element of the underlying service connection claim; and (3) is specifically required to substantiate the element or elements needed for service connection that were found insufficient in the prior final denial on the merits. Inasmuch as the determination below constitutes a full grant (reopening) of the new and material evidence claims being addressed, there is no reason to explain how VA has fulfilled the VCAA duties to notify and assist as to those issues. As to the issues of service connection for a left knee and lumbar disc disorders secondary to service-connected right knee disability, and service connection for bilateral hand numbness, the Board finds that VA has satisfied the duty to notify the Veteran. In a timely December 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for secondary service connection, disability ratings, and for the effective date of the claims. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA examination in June 2011. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion and findings obtained in this case are adequate. As discussed in further detail below, the VA nexus opinion provided considered the Veteran's statements, included a physical examination of the Veteran's left knee and lumbar spine, and provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, a VA medical examination, post-service VA and private treatment records, and the Veteran and his wife's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. New and Material Evidence Law and Analysis In a June 2007 decision, the Board denied service connection for left TKR, to include as secondary to service-connected right knee disability and service connection for lumbar disc disease, to include as secondary to service-connected right knee disability, finding that the preponderance of the evidence weighed against a nexus between the Veteran's left knee and low back disabilities and his service-connected right knee disability. The Veteran was properly notified of the June 2007 Board decision, did not appeal, and was final when issued. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, 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 VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the July 2012 rating decision on appeal, the RO reopened and denied service connection for left TKR and lumbar disc disease. Regardless of the RO's determination during the appeal as to whether new and material evidence has been received to reopen the claims noted above, the question of whether new and material evidence has been received to reopen the claims must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them 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), aff'g, 8 Vet. App. 1 (1995). The evidence of record at the time of the June 2007 Board decision included statements from the Veteran, service treatment records, VA and private treatment records, and an October 2003 VA examination report addressing the probable etiology the Veteran's left knee and low back disabilities. The evidence of record at the time of the June 2007 Board decision did not show that the Veteran's left knee and low back disabilities were related to service or to his service-connected right knee disability. The evidence received since the June 2007 Board decision which pertains to the Veteran's left knee and low back disabilities includes: post-service VA treatment records; private treatment records; a June 2011 VA examination report; and the Veteran's statements. In his December 2012 statement, the Veteran reported that his right knee injury was a "contributing" cause of the degenerative changes in his left knee. According to the Veteran, his left knee degenerative changes "progressed more rapidly" due to his right knee replacement. Further, during the June 2011 VA examination report, it was noted that the Veteran believed that his lumbar disc disease was due to his right knee disability. A negative nexus opinion was rendered by the June 2011 VA examiner as to whether the Veteran's left knee and lumbar spine disorders were caused by the right knee disability. Notably, however, the VA examiner did not render an opinion as to whether the left knee and lumbar spine disorders were aggravated by the service-connected right knee disability. The Board finds that the Veteran's December 2012 statement and the June 2011 VA examination report raise the possibility of a new theory of entitlement; specifically, secondary service causation. This theory of entitlement also requires consideration as to whether the Veteran's service-connected right knee disability chronically worsened (aggravated) the nonservice-connected left knee and lumbar disc disease disorders. For this reason, the Board finds that new and material evidence has been received to reopen service connection for a left TKR and lumbar disc disease. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The conditions of degenerative joint disease and degenerative disc disease are considered chronic diseases listed as "arthritis" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claims for service connection for left knee and lumbar disc disease disorders. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). On the other hand, bilateral hand numbness is not a chronic disease under 38 C.F.R. § 3.309(a) and the claim should be adjudicated using the general principles of service connection. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Secondary Service Connection for Left Knee and Lumbar Disc Disease Disorders The Veteran specifically maintains that his left knee and lumbar disc disease disorders are related to his service-connected right knee disability. For example, in his statement dated December 2012, the Veteran reported that his right knee disability was the "contributing cause" of the degenerative changes in his left knee and lumbar spine. In an October 2003 VA examination report, the Veteran stated that his left knee and lumbar spine disorders occurred after placing undo pressure on his left knee and back from his previous right knee injury. The Board finds that the Veteran has not maintained that his left knee or lumbar disc disorders are directly due to service. See Veteran's statements dated November 2010, September 2012, and December 2010. As such, the Board will only address the theory of secondary service connection when deciding the left knee and lumbar disc disease disorders, as this is the only theory reasonably raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). At the outset, the Board finds that the Veteran is currently service-connected for right total knee replacement and right knee scar. The Veteran has been diagnosed with left knee degenerative joint disease and lumbar degenerative disc disease. As such, the remaining critical element is whether the evidence of record establishes a medical nexus between the current left knee and lumbar disc disease disorders and the service-connected right knee disability. In October 2003, the Veteran was afforded a VA examination to address his left knee and lumbar disc disease disorders. After interviewing the Veteran and conducting a physical examination, the VA examiner diagnosed degenerative arthritis of the left knee and lumbar discectomy with fusion of L4/5. Further, the VA examiner stated that the Veteran's left knee and lumbar spine represented the degenerative diseases that occur with the aging process. Therefore, the VA examiner opined that the Veteran's left knee and lumbar disc disease disorders were less likely than not secondary to his right knee injury 25 years ago. The Board finds that this medical opinion weighs against a finding of secondary service connection. In a second June 2011VA examination, the Veteran reported that in 1967 he had a medial meniscectomy on his right knee and later, in 2001, he had a right total knee replacement. According to the Veteran, pain in his left knee and lumbar spine developed in 2000, one year prior to his total right knee replacement surgery. Upon physical examination of the left knee and lumbar spine, the June 2011 VA examiner noted that the lumbar spine and left knee conditions started approximately 34 years after service separation. Further, the VA examiner stated that there was no evidence that lumbar disease or disease in the contralateral knee would cause pain or the necessity for surgery. According to the VA examiner, the left knee surgery and lumbar discectomy were most likely due to the degenerative changes of the aging process. Therefore, the June 2011 VA examiner opined that it was less likely than not that the Veteran's left knee and lumbar spine disorders were related to his service-connected right knee disability. The Board finds the October 2003 and June 2011 VA medical opinions and findings to be highly probative as to whether the Veteran's left knee and lumbar disc disease disorders are causally related to or permanently worsened by service-connected right knee disability. The October 2003 and June 2011 VA medical opinions considered the Veteran's statements, conducted a physical examination, and provided a complete rationale for the opinions stated. The Board acknowledges that the VA examiners did not specifically state whether the left knee and lumbar disc disorders were "aggravated" by the Veteran's right knee disability; however, the Board finds that the medical examinations sufficiently addresses both the issue of proximate cause and aggravation, and therefore, a remand for an additional examination and/or opinion to decide the claims is not warranted. See 38 C.F.R.§ 3.159(c)(4). In this regard, both examiners opined that the left knee and lumbar disc disorders were due to aging, and not due to or aggravated by the right knee disability. Specifically, the June 2011 VA examiner noted that there was "no good evidence" showing that lumbar disc disease and degenerative joint disease would require surgery due to a contralateral knee disability. The June 2011 VA examiner further opined that it was less likely than not that the Veteran's left knee and lumbar spine disorders were "related" to his service connected right knee disability. The Board finds that a plain reading of the opinions provided by the VA examiners encompassed the question of aggravation. Moreover, the Veteran has not asserted that his service-connected right knee disability "aggravated" his left knee and lumbar disc disease disorders. Instead, the Veteran specifically stated that his right knee disability was the contributing "cause" of his left knee and lumbar disc disorders. The Board finds that the October 2003 and June 2011 VA medical opinions fully addressed the Veteran's specific contentions. In making its determination, the Board has considered post-service VA and private treatment notes relating to the Veteran's left knee and lumbar disc disease disorders. While many of these records identify a long history of complaints and treatment for left knee degenerative joint disease and lumbar degenerative disc disease, they offer no medical opinion as to the etiology of these disorders, to include whether they are secondary to the Veteran's service-connected right knee disability. The Board has also considered the Veteran's statements asserting a nexus between his left knee and lumbar disc disease disorders and his service-connected right knee disability. While the Veteran is competent to report symptoms as they come to him through his senses, degenerative joint disease of the knee and lumbar disc disease are not the type of disorders that a lay person can provide competent evidence on questions of etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Here, given the Veteran's numerous degenerative disorders (bilateral knees and various lumbar discs) the Board finds that the Veteran does not have the education, training, or experience to provide competent opinions as to the etiology of his disorders. For these reasons, and upon review of all the evidence of record, the Board finds that the weight of the competent and probative evidence is against a finding of relationship between the Veteran's left knee and lumbar disc disorders and service-connected right knee disability. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. §5107; 38 C.F.R. § 3.102. Secondary Service Connection for Bilateral Hand Numbness As noted above, to prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In the present case, the Veteran contends that his bilateral hand numbness is directly related to his lumbar disc disease disorder. See June 2011 claim for VA compensation. For the reasons discussed in detail above, the Board finds that the Veteran is not service connected for a lumbar disc disease disability; therefore, a threshold legal requirement for a valid claim of secondary service connection has not been met. See 38 C.F.R. § 3.310. Accordingly, the claim of service connection for bilateral hand numbness is legally insufficient, and must be denied as lacking legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER New and material evidence having been received, the appeal to reopen service connection for left knee disorder is granted. New and material evidence having been received, the appeal to reopen service connection for lumbar disc disease is granted. Service connection for left knee disorder as secondary to service-connected right knee disability is denied. Service connection for lumbar disc disease as secondary to service-connected right knee disability is denied. Service connection for bilateral hand numbness is denied. ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs