Citation Nr: 1329029 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 09-42 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a back disorder. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. 3. Entitlement to service connection for glaucoma. 4. Entitlement to service connection for fusion, left thumb, first metatarsophalangeal joint with degenerative changes. 5. Entitlement to service connection for degenerative joint disease with subluxation, cervical spine. 6. Entitlement to service connection for neuropathy of the right upper extremity. 7. Entitlement to service connection for residuals of removal of ribs. 8. Entitlement to service connection for a urinary condition. 9. Entitlement to service connection for loss of motion of the right thumb. 10. Entitlement to service connection for status post right rotator cuff repair. 11. Entitlement to service connection for a right thigh disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1974 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). FINDINGS OF FACT 1. An April 1976 rating decision denied entitlement to service connection for a back condition; the Veteran was properly notified of the decision but did not appeal. 2. Evidence added to the record since the April 1976 rating decision does raise a reasonable possibility of substantiating the service connection claim for a back condition. 3. The evidence as to whether the Veteran's present degenerative disc disease of the lumbar spine developed as a result of active service is in equipoise. 4. Glaucoma was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 5. Fusion, left thumb, first metatarsophalangeal joint with degenerative changes, was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 6. Degenerative joint disease with subluxation, cervical spine, was not manifest during active service or to a degree of 10 percent or more within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service. 7. Neuropathy of the right upper extremity was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 8. Residuals of removal of ribs was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 9. A urinary disability is not shown by the evidence of record. 10. Loss of motion of the right thumb was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 11. Status post right rotator cuff repair was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. 12. A right thigh disorder was not manifest during active service and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. New and material evidence was received and the claim for entitlement to service connection for a back condition is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Degenerative disc disease of the lumbar spine was incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. Glaucoma was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 4. Fusion, left thumb, first metatarsophalangeal joint with degenerative changes, was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 5. Degenerative joint disease with subluxation, cervical spine, was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 6. Neuropathy of the right upper extremity was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 7. Residuals of removal of ribs were not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 8. A urinary condition was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 9. Loss of motion of the right thumb was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 10. Status post right rotator cuff repair was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 11. A right thigh disorder was not incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claims by correspondence dated in April 2007 and May 2007. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing notice of the duties to notify and assist claimants in substantiating a claim it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. The Veteran was provided notice as to these matters by correspondence dated in April 2007. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to these matters have been requested or obtained. The available record includes service medical records, VA treatment and examination reports, private treatment records, and the Veteran's statements and testimony in support of his claims. There is no evidence of any additional existing pertinent records. The Board finds that further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. The Board finds he has not identified a specific event, disease, or injury concerning his claims for glaucoma, thumb disorders, removal of ribs, and a urinary condition that may be verified as having occurred during active service and an additional examination is not required. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (a VA examination is not required to when there is no credible evidence establishing an event, injury, or disease in service). At his hearing in March 2013 the Veteran indicated his claims were related to frostbite he sustained during training in service. There is no credible evidence, however, demonstrating he sustained a cold injury during service. It is also significant to note that a November 2007 VA spine examination addressed the issue of bladder incontinence associated with the Veteran's lumbar spine disability. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations or opinions as to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claims would not cause any prejudice to the appellant. New and Material Evidence Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition under 38 C.F.R. § 3.309(a) during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, an April 1976 rating decision denied entitlement to service connection for a back condition. It was noted, in essence, that the evidence demonstrated the Veteran's back condition existed prior to service and was not aggravated by active service. The Veteran was notified of the decision, but did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). The evidence added to the record since April 1976 includes the Veteran's statements and testimony in support of his claim and VA treatment and examination reports. A November 2007 VA spine examination report noted the Veteran had a laceration of the right latissimus dorsi prior to service and that service treatment records show he was seen on multiple occasions for continued low back problems and continued lumbosacral pain spasms. The examiner provided diagnoses including spondylosis of the lumbar spine with degenerative disc disease to L4-5 and L5-S1 with previous back surgery. It was noted that there was a 50:50 chance that the post-military spine problems were related to military duties and complaints of back pain in service. Based upon the evidence of record, the Board finds that the evidence received since the April 1976 rating decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim. The evidence includes a November 2007 VA medical opinion relating the Veteran's present back problems to his military duties and complaints of back pain at that time. Therefore, the claim must be reopened. Service Connection Claims Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.306. Service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Service connection can be granted for certain chronic diseases, including arthritis, if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). These presumptions are rebuttable by affirmative evidence to the contrary. Even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. Stefl v. Nicholson, 21 Vet. App. 120 (2007). When a claimed disorder is not included as a presumptive disorder, direct service connection may be established by evidence demonstrating that the disease was in fact incurred during the service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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 1372 (Fed. Cir. 2007). Lay evidence presented by a Veteran concerning his continuity of symptoms after service may be considered credible, and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The Court has also held that VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence includes service treatment records dated in August 1974 noting the Veteran complained of back pain after running a training course. The examiner noted limitation of motion secondary to paralumbar spasm. Records are negative for complaint, treatment, or diagnosis of glaucoma, thumb disorders, cervical spine disorder, right upper extremity disorder, removal of ribs, urinary condition, or right thigh disorder. The Veteran's March 1975 separation examination revealed no clinical abnormalities. In his report of medical history he noted having had recurrent back pain and indicated he did not know if he had broken bones, arthritis, a trick shoulder. He denied having had eye trouble. VA hospital records dated in from January 1981 to February 1981 noted the Veteran was status post insertion of a chest tube for pneumothorax secondary to trauma and fractured ribs in June 1978. In was also noted that he had been treated for a genitourinary infection in 1978. The diagnoses included pyuria and status post fracture of the right ribs and pneumothorax. Private medical records dated in October 1992 noted the Veteran sustained an injury to the left thumb in April 1992. He underwent left thumb metacarpophalangeal joint fusion. An October 1992 report noted he was starting to develop similar instability symptoms to his right thumb. VA eye examination in March 1994 noted the Veteran had a presumed history of trauma to the left eye associated with his having been hit with a cardboard box. The examiner found it was most likely that the Veteran had primary open angle glaucoma. A January 1996 VA examination report noted the Veteran injured his left thumb in 1986 while working as a machine operator. The diagnoses included left thumb trauma in 1986 and low back pain with mild s-shaped scoliosis of the thoracolumbar spine. An August 1998 examination report included diagnoses of cervical and lumbar spine disc disease, bilateral glaucoma, and arthritis of the hands with pinning of both thumbs. No opinions as to etiology were provided. A February 2007 private medical statement noted the Veteran was receiving treatment for various medical problems including chronic right shoulder pain, chronic right thigh pain related to an old hamstring rupture, degenerative joint disease of the cervical and lumbar spines, and motor and sensory neuropathy to the right upper extremity. No opinions as to etiology were provided. VA neurology examination in November 2007 included a diagnosis of right upper extremity neuropathy that was less likely related to an event in service. It was noted there was no documentation indicating right upper extremity numbness in service or within several years of service and that it was likely the Veteran's right shoulder numbness was related to an upper right cervical radiculopathy. A November 2007 VA spine examination report noted there was no mention of any cervical spine issues during the Veteran's military service. It was noted he had a laceration of the right latissimus dorsi prior to service and that records show he was seen on multiple occasions for continued low back problems and continued lumbosacral pain spasms during service. The examiner construed the Veteran's March 1975 report of medical history as noting a trick shoulder and reported the Veteran denied any bladder or bowel incontinence. The diagnoses included degenerative disc disease of the cervical spine, spondylosis of the lumbar spine with degenerative disc disease to L4-5 and L5-S1 with previous back surgery, and status post right rotator cuff repair. It was noted that it was less likely that cervical spinal stenosis or a current right shoulder disorder were related to military service, but that there was a 50:50 chance that the Veteran's post-military spine problems were related to his military duties and to his complaints of back pain in service. Based upon the evidence of record, the Board finds that the evidence as to whether the Veteran's present degenerative disc disease of the lumbar spine developed as a result of active service is in equipoise. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Therefore, the claim for entitlement to service connection for degenerative disc disease of the lumbar spine is granted. The Board finds, however, that the glaucoma, left thumb fusion of the first metatarsophalangeal joint with degenerative changes, cervical spine degenerative joint disease with subluxation, neuropathy of the right upper extremity, removal of ribs, loss of motion of the right thumb, status post right rotator cuff repair, and a right thigh disorder were not manifest during active service and are not shown to have developed as a result of an established event, injury, or disease during active service. There is no evidence of arthritis manifested within the first post-service year and a present urinary disability is not shown by the medical evidence of record. The available medical evidence also shows the Veteran sustained injuries after service to the ribs, left eye, and left thumb and that he was treated for a genitourinary infection several years after his service discharge. The November 2007 examination report opinions as to the cervical spine, right shoulder, and right upper extremity neuropathy claims are persuasive and based upon adequate rationale. The opinions are shown to have been based upon a thorough examination, a thorough review of the evidence of record, and adequate consideration of the evidence of record. While the Veteran is competent to provide evidence as to observations and some medical matters, his statements are, at most, conclusory assertions of a nexus between a present diagnosis and an unverified event in service. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of a present medical diagnosis and any relationship to service are complex etiological questions akin to the type of medical matters which courts have found laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether the claimed disability is a type of disability for which a lay person is competent to provide etiology or nexus evidence). The Veteran in this case is not shown to be competent to provide etiology or nexus evidence and his report of having sustained a cold injury during active service is found to be not credible because it is inconsistent with the existing evidence of treatment and the examination findings in service. The Board finds the preponderance of the evidence in this case is against the Veteran's remaining claims. Therefore, entitlement to service connection for glaucoma, left thumb fusion of the first metatarsophalangeal joint with degenerative changes, cervical spine degenerative joint disease with subluxation, neuropathy of the right upper extremity, removal of ribs, a urinary condition, loss of motion of the right thumb, status post right rotator cuff repair, and a right thigh disorder must be denied. ORDER New and material evidence was received to reopen a claim for entitlement to service connection for a back disorder; the claim is reopened. Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for glaucoma is denied. Entitlement to service connection for fusion, left thumb, first metatarsophalangeal joint with degenerative changes, is denied. Entitlement to service connection for degenerative joint disease with subluxation, cervical spine, is denied. Entitlement to service connection for neuropathy of the right upper extremity is denied. Entitlement to service connection for residuals of removal of ribs is denied. Entitlement to service connection for a urinary condition is denied. Entitlement to service connection for loss of motion of the right thumb is denied. Entitlement to service connection for status post right rotator cuff repair is denied. Entitlement to service connection for a right thigh disorder is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs