Citation Nr: 1330532 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-14 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a higher rating for a left knee condition, residuals of shrapnel injury, currently evaluated as 10 percent disabling. 2. Whether new and material evidence has been received to reopen a claim for service connection for residuals of pneumonia. 3. Whether new and material evidence has been received to reopen a claim for service connection for disc herniation, cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2013, the Veteran testified during a Travel Board hearing before the undersigned, a transcript of which is of record. At the hearing, the Veteran provided additional evidence consisting of copies of service treatment records (STRs), and post-service VA and private treatment records. As this evidence was accompanied by a waiver of initial consideration by the RO (as the Agency of Original Jurisdiction (AOJ)), the Board hereby accepts it into the record. See 38 C.F.R. §§ 20.800, 20.1304 (2013). The RO thus far through a February 2013 Supplemental Statement of the Case (SSOC) appears to have reopened the claims for service connection for pneumonia and a cervical spine disorder. This notwithstanding, the Board must make the threshold preliminary determination of whether there is new and material evidence to reopen these claims, before proceeding further, because this initial determination affects the Board's jurisdiction to adjudicate the claims on the underlying merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is reopening both previously denied claims, and is also granted the reopened claim for service connection for residuals of pneumonia. The reopened claim for service connection for cervical spine disc herniation, along with the increased rating claim for the left knee, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Through a December 2004 rating decision, the RO denied the Veteran's original claims for service connection for residuals of pneumonia and a cervical spine disorder. He did not appeal. 2. Since the December 2004 rating decision, additional evidence has been received which relates to an unestablished fact necessary to substantiate the previously denied claims for service connection for residuals of pneumonia and a cervical spine disorder. 3. There is competent medical opinion evidence linking the Veteran's recent episode of pneumonia to treatment for the same during military service. CONCLUSIONS OF LAW 1. The December 2004 RO rating decision which denied the claims for service connection for residuals of pneumonia and a cervical spine disorder became final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 20.200, 20.302 (2013). 2. New and material evidence has been received to reopen the Veteran's previously denied claims for service connection for residuals of pneumonia and a cervical spine disorder. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013). 3. Resolving reasonable doubt in the Veteran's favor, the criteria are met to establish service connection for residuals of pneumonia. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist the Veteran The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf. A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims (Court) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence. The Board is reopening the claim for service connection for residuals of pneumonia, and further, granting the underlying claim on the merits. Service connection for a cervical spine condition is being reopened, though that claim is then being remanded for further development. Regarding service connection for pneumonia, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. Moreover, a conclusive determination on VCAA-compliance regarding service connection for a cervical spine disorder is deferred pending future readjudication of the claim on its merits. While the Veteran clearly received VCAA notice concerning his petition to reopen, the Board points out only that any notice deficiency also was harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). Petition to Reopen Service Connection for Residuals of Pneumonia, and Service Connection on the Merits The RO originally considered the Veteran's claim for service connection for residuals of pneumonia pursuant to a December 2004 rating decision, denying the claim. The decision's rationale focused upon the results of an October 2004 VA Compensation and Pension examination which had essentially found no residuals of the Veteran's bout of pneumonia in service. The RO then proceeded to indicate that "[s]ervice connection for residuals of pneumonia is denied since this condition neither occurred in nor was caused by service." Whereas this statement on its face indicates that the reason for denial was absence of in-service incurrence of disability, the Board is inclined to view the actual basis as the lack of a current disability, given what the above-cited examination report indicated. The Veteran did not file a timely Notice of Disagreement (NOD) with that decision, to initiate an appeal of it, and hence it became final and binding based on the evidence then of record. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.302. In addition, no new and material evidence was received within one year of the decision. See 38 C.F.R. § 3.156(b). When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 C.F.R. § 3.156(a). For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). The element originally missing from the Veteran's claim that must be established to reopen it comprises that of a current diagnosed disability. The first criterion to establish service connection is competent evidence of the present disability claimed. See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability."). There is now the report of a July 2006 clinical evaluation at a private medical facility substantiating a post-service diagnosis of pneumonia. Whereas this episode of pneumonia apparently then cleared up, and there is no immediate present indication of pneumonia, the fact remains that the Veteran had pneumonia roughly contemporaneously with filing his petition to reopen service connection for this condition, in January 2007. See generally, McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the existence of a current disability may be satisfied when a claimant has a disability at the time a claim for compensation is filed or during the pendency of that claim even though the disability resolves prior to VA's adjudication of the claim). See too, Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that evidence of disability preceding the date of claim should also be considered with regard to its probative value towards whether a disability existed at the date of filing of the claim). This new evidence, not of record in October 2004, provides sufficient grounds to substantiate the Veteran's claim with regard to the key element of a current disability. It therefore comprises new and material evidence to reopen the previously denied claim. Consequently, the claim for service connection for residuals of pneumonia is effectively reopened. See 38 C.F.R. § 3.156(a). The Board further finds that a favorable decision may be issued based upon the record as it stands. In this regard, under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of 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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter circumstances, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service treatment records reflect that in March 1966, the Veteran underwent an approximate two-month hospitalization at a U.S. Naval hospital, after having noted the onset of headache, dizziness, cough productive of a greenish sputum, and slight fever, which later became a significantly elevated fever. Past history, social history, family history and review of systems revealed no information pertinent to the illness. After a chest x-ray and further diagnostic testing, pneumonia was found. The Veteran was placed at bed rest and begun on parenteral penicillin. He was afebrile by the third hospital day, but because of the extensive amount of lung tissue involved, a rather lengthy hospitalization was involved. Intermittent positive pressure breathing and postural drainage, deep breathing exercises and expectorants were used to gradually clear the lung fields. At discharge time, the Veteran was completely well and asymptomatic. The diagnosis on discharge was pneumonia, right and left lower lobes, due to diplococcus pneumonia. Over the course of the next year, the Veteran had some recurrence of cold and flu-like symptoms intermittently, but a renewed diagnosis of pneumonia was consistently ruled out, in lieu of diagnosed localized pharyngitis. There were no additional findings involving pneumonia on the Veteran's separation examination, or upon a March 1978 VA general medical examination. Thereafter, the Veteran underwent an October 2004 VA examination for respiratory disease, resulting in the diagnosis, in relevant part, of "normal respiratory system with no long-term residuals of Agent Orange or pneumococcal pneumonia." However, in July 2006, private treatment records indicated a new diagnosis of "pneumonia, organism NOS [not otherwise specified]." The Veteran had initially presented to a VA medical clinic the previous month, with cough, congestion, sputum production, fever. The impression at that time had been "bronchitis, possibly a clearing pneumonitis." In her August 2006 correspondence, S.R.C., the private nurse who had been treating the Veteran for pneumonia, stated as follows: "I have been treating [the Veteran] for a recurrent pneumonia. After reviewing his service medical records, I have concluded that his condition is as likely as not related to his pneumonias in the military. Please contact me with any questions in this regard." The Board finds that the record presents a sufficient basis upon which to award service connection, inasmuch as there is initially competent evidence of a diagnosis of post-service pneumonia that is generally contemporaneous with the date of claim (the Veteran's petition to reopen). McClain, supra. Moreover, there is favorable medical nexus evidence in the form of the August 2006 opinion proffered by the nurse that the recent pneumonia is related to the in-service bout of pneumonia, deemed competent and probative in light of its ostensible grounding in review of service medical history, and the fact that this particular treatment provider also directly treated the Veteran for pneumonia and is presumed to likely have some expertise in the matter at hand. See Williams v. Brown, 4 Vet. App. 270, 273 (1993) (nurse's statement may constitute competent evidence where the nurse has specialized knowledge as to the area of medicine or participated in treatment). See too, Goss v. Brown, 9 Vet. App. 109, 113 (1996). There is no contrary medical opinion evidence on file. Consequently, resolving reasonable doubt in the Veteran's favor, the criteria for service connection are deemed met. Petition to Reopen Service Connection for Disc Herniation of the Cervical Spine Pursuant to the RO's rating decision of December 2004, the Veteran's claim was denied as to service connection for herniated discs at C5-6 and C6-7. The stated rationale was that there was no record of this condition in service, and as a result no basis for establishing a causal relationship back to service. However, because the evidence then on file did not show any medical diagnosis of a cervical spine condition (only the Veteran's subjective report of herniated discs at C5-6 and C6-7), there was not genuine evidence of a cervical spine disability. Therefore, the Board reasonably construes the basis for RO denial to encompass primarily the lack of a current disability. The Veteran did not file a timely NOD with that decision, and hence it became final and binding. In addition, no new and material evidence was received within one year of the decision. See 38 C.F.R. § 3.156(b). As with the prior claim, the operative basis for original denial was the absence of evidence of a current disability. There has since been added to the file the report of an August 2002 private orthopedic evaluation indicating a clinical diagnosis of "moderate localized spondylosis and degenerative disk disease C5-6 and C6-7 level," which though dated prior to the December 2004 RO rating decision, was not on file as of that time period. Subsequent treatment records objectively confirm the presence of degenerative disk disease of the cervical spine. Therefore, the Board concludes that a preliminary showing sufficient to establish the reasonable possibility of a current cervical spine disability has been provided, and the claim under consideration is reopened based on receipt of "new and material" evidence. The readjudication of the reopened claim on the merits is however being deferred pending completion of the evidentiary development requested in the remand section below. ORDER Service connection for the residuals of pneumonia is granted. New and material evidence having been received, the claim for service connection for disc herniation cervical spine is reopened. REMAND Unfortunately, a remand is required for the reopened claim for service connection for a cervical spine disorder. A VA Compensation and Pension examination will be ordered to determine whether current cervical spine pathology is attributable to the Veteran's reported neck injuries during military service in the capacity of a tank crewman. In addition, VA treatment records will be obtained, as set forth below. The Veteran's service-connected left knee disorder also requires further examination, in light of his assertions during the Board hearing that the condition has recently worsened and has begun to involve knee instability in addition to existing limitation of motion. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). Accordingly, these claims are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete VA treatment records, to include from the Portland and White City VA treatment facilities, dated from January 1969 to April 2003 and dated since February 2013. 2. Thereafter, schedule the Veteran for a VA orthopedic examination. The entire claims file and a copy of this remand must be made available to the examiner, who is asked to review the records and to conduct an appropriate examination including all necessary studies and tests, including x-rays, if indicated. The examiner should identify all current cervical spine disorders found to be present. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current cervical spine disorder had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should consider the complaints and findings of neck pain in the service treatment records, to include in February 1967, and the Veteran's competent assertions of neck injury during service. The examiner should also identify and describe in detail all residuals attributable to the Veteran's service-connected left knee condition, residuals of shrapnel injury. The examiner should report the range of motion of the left knee, in degrees. The examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the left knee is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also determine whether there is any evidence of recurrent subluxation or lateral instability of the left knee, and if so, to what extent. A complete rationale for any opinion expressed should be provided. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, after undertaking any other development deemed appropriate, re-adjudicate the claims on appeal. If the benefits sought are not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are 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. 2013). ______________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs