Citation Nr: 1333372 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 04-14 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim seeking service connection for a low back disorder, also claimed secondary to a service-connected left knee disability. 2. Whether new and material evidence has been submitted sufficient to reopen a claim seeking service connection for a disorder manifested by cold symptoms, headaches, sinusitis, rhinitis, and face, ear and neck pain, also claimed due to exposure to hazardous chemical materials or, in the alternative, secondary to a service-connected heart disability. 3. Entitlement to an increased rating greater than 10 percent for left knee residuals of a meniscus tear with degenerative changes. 4. Entitlement to an increased rating greater than 10 percent for intra-articular calcification of the left elbow with degenerative changes. 5. Entitlement to an increased rating greater than 10 percent for right foot Morton's neuroma. 6. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 8, 2010. WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1971 to October 1975 and again in the Army from July 1977 to July 1993. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran had a hearing before the Board in July 2009 and the transcript is of record. The Board previously remanded these claims in May 2008, October 2009, and May 2011 to further assist the Veteran in developing his claims. During the pendency of this appeal, in an April 2011 rating decision, the Veteran was awarded a 100 percent (total) disability rating for his service-connected heart disability, effective November 8, 2010. The RO determined that the 100 percent rating deemed the TDIU issue moot and, thus, did not further consider the appeal. The Veteran, on the other hand, maintains his service-connected disabilities rendered him unemployable as of April 2009. These increased rating claims herein have been pending well beyond November 8, 2010 and, thus, TDIU is a part of those pending increased rating claims. Cf. Rice v. Shinseki 22 Vet. App. 447 (2009). The TDIU claim is still properly before the Board here insofar as the Veteran claims entitlement prior to November 8, 2010. The issue has been appropriately recharacterized above. The Board notes that the Veteran also has pending appeals seeking service connection for a right knee disorder, bilateral ankle disorders, sleep apnea, bilateral pes planus, and bilateral plantar fasciitis. These issues, which were certified to the Board separate from the current appeal, are addressed in a separate Board decision. The increased rating and TDIU issues 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. The VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In a November 1993 rating decision, the RO denied entitlement to service connection for a low back disability and a disability manifested by chronic colds; the Veteran was notified of this decision and of his appeal rights, but he did not appeal it to the Board. 2. Evidence received since the November 1993 rating decision does not relate, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claims; is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claims sought to be reopened; and does not raise a reasonable possibility of substantiating the claims for service connection for a low back disability or a disability manifested by chronic colds. CONCLUSIONS OF LAW 1. The November 1993 rating decision denying service connection for a low back disability and a disability manifested by chronic colds is final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2013). 2. Evidence received since the November 1993 rating decision is not new and material, and the claims are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, 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 the evidence that must be presented. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). With regard to claims on appeal here, the record reflects that the Veteran was provided all required notice in a letter mailed in February 2010 and, thereafter, the claims were readjudicated, most recently in a July 2013 Supplemental Statement of the Case (SSOC). The Veteran's service treatment records, private treatment records, and VA outpatient treatment records have been obtained. The Veteran has not identified any additional, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Although no VA examination was provided and no VA medical opinion was obtained in response to the low back or "cold symptoms" claims to reopen, VA is not obliged to provide an examination or obtain an opinion in response to a claim to reopen if new and material has not been received. See 38 C.F.R. § 3.159(c)(4). Therefore, the Board is also satisfied that VA has satisfied its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. New and Material Evidence Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision-makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase, "raises a reasonable possibility of substantiating the claim," as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Low Back and Cold Symptoms In November 1993, the RO denied service connection for a low back disorder and a disability manifested by "cold symptoms," finding no current diagnoses. The Veteran was notified of the decision and his appellate rights, but did not file a notice of disagreement with the decision. At the time of the November 1993 denial, the record contained service treatment records, which confirm sporadic treatment of cold complaints, viral syndrome, upper respiratory infections, and back pain. The records also confirmed the Veteran worked as a welder in service around steel, painted surfaces, and gas with complaints of shortness of breath. The service treatment records, however, do not confirm any diagnosed condition for these symptoms. Indeed, chest x-rays and other diagnostic tests were all within normal limits. Post-service records include a September 1993 VA examination where the Veteran indicated he worked at a chemical factory between his two periods of service from 1975 to 1977. At that time, the Veteran did not have any complaints related to his back or related to cold symptoms. The post-service records contain private and VA medical treatment records that confirm sporadic complaints of back pain and cold symptoms, with no chronic diagnosis. The Veteran was treated for lumbar strain by his private physician in September 1997 following a work-related injury, but no chronic diagnosis is confirmed in the record. Evidence received since the November 1993 denial includes additional VA and private treatment records from 1993 to 2012 and additional statements from the Veteran. The additional evidence, however, still does not confirm a diagnosis related to the low back or "cold symptoms." The Veteran has never been diagnosed with a low back disability or a disability manifested by "cold symptoms." The Board notes the Veteran has since November 1993 indicated he believes he has a low back disability secondary to a service-connected left knee disability. (See March 2003 statement). Similarly, the Veteran claims he has cold symptoms due to his service connected heart disability. (See March 2003 statement). These particular theories were never considered by the RO, but the fact remains that none of the new evidence, including the Veteran's statements, received after November 1993 indicate the Veteran has current diagnoses or had diagnoses during the period of his claim. Therefore, the evidence is not new and material. Accordingly, reopening of the claims for service connection for a low back disorder and for a disorder manifested by cold symptoms is not warranted. ORDER The Board having determined that new and material evidence has not been received, reopening of the claim for service connection for a low back disorder, also claimed secondary to a service-connected left knee disability, is denied. The Board having determined that new and material evidence has not been received, reopening of the claim for a disorder manifested by cold symptoms, headaches, sinusitis, rhinitis, and face, ear and neck pain, also claimed due to exposure to hazardous chemical materials or, in the alternative, secondary to a service-connected heart disability, is denied. REMAND The Veteran claims his left knee, left elbow, and right foot disabilities are worse than currently rated. He further indicates he was forced to stop working in April 2009 due to his service-connected disabilities. Although he was awarded a 100 percent schedular rating for his heart disability, effective November 8, 2010, he maintains he is entitled to a 100 percent rating from April 2009, the date he last worked. The claims folder includes Social Security Administration (SSA) disability records indicating he was found unemployable, mainly due to his heart disability, as of April 2009. The records also include VA and private treatment records through 2012 indicative of ongoing treatment for all his service-connected disabilities. With regard to increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Board notes there are VA examinations of record dated in 2011, merely two years ago, but these examinations mainly focused on the question of the Veteran's employability. The examinations do not contain range of motion findings or other diagnostic testing required to rate the increased rating claims on appeal. Rather, the Veteran was last afforded a VA examination specifically for ascertaining the current severity of his service-connected left knee, left elbow, and right foot disabilities in March 2010, over three years ago. Since that time, the claims folder contains additional private and VA treatment records indicative of ongoing treatment for joint pain, to include the left knee, left elbow, and right foot. The Veteran has also submitted numerous statements that his conditions have worsened. For these reasons, new VA examinations are indicated. Although the TDIU claim before the Board here is limited to the time period prior to November 8, 2010, the Board finds the issue is "inextricably intertwined" with the other claims being remanded here. Harris v. Derwinski, 1 Vet. App. 181 (1991). The issue must be adjudicated only after full development and adjudication of the Veteran's increased rating claims. The VA must also take this opportunity to obtain VA outpatient treatment records from October 2012 to the present and any other identified private treatment records. Accordingly, the case is REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for the disorders at issue since October 2012. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO and any VA facilities identified must provide a negative response if no records are available. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate orthopedic VA examination to assess the current severity of his left knee, left elbow, and right foot disabilities. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected joints. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected left knee, left elbow, and right foot disabilities. 3. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated, including the issue of entitlement to a TDIU prior to December 8, 2010. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). The claim 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 2002). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs