Citation Nr: 1333509 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-44 270 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to a compensable rating for right inguinal hernia repair with residual scar. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Luke Pelican, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Coast Guard from June 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has considered the records contained in the electronic claims file and the paper claims folder in adjudicating this decision. The issue of entitlement to a compensable rating for right inguinal hernia repair with residual scar is addressed in the REMAND portion of the decision below and is REMANDED to the RO. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. A January 2007 rating decision that denied service connection for a right knee disability on the basis that there was no nexus between the Veteran's right knee disability and his service was not appealed. 2. Evidence added to the record since the final January 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right knee disability. 3. The preponderance of the evidence is against a finding that a right knee disability is related to the Veteran's period of military service. CONCLUSIONS OF LAW 1. The January 2007 rating decision denying service connection for a right knee disability is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). 2. New and material evidence sufficient to reopen the Veteran's claim for service connection for a right knee disability has been presented. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013) 3. A right knee disability was not incurred in service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Duties to Notify and Assist VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), 4.2 (2013). The VCAA requires VA to assist a claimant at the time he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claim, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Additionally, in Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (the Court) held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim. All notice under the VCAA should generally be provided prior to an initial decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, prior to the pertinent rating decision in this matter, a letter from VA dated October 2009 notified the Veteran of the information and evidence that must be submitted to substantiate a claim for service connection and to reopen the claim based on new and material evidence, identified the specific evidence required to substantiate the elements needed for service connection that were found insufficient in the prior denial on the merits, and provided general VCAA notice for the underlying service connection claim. The Veteran was notified of the allocation of responsibilities between himself and VA and of how ratings and effective dates are assigned. Therefore, the duty to notify is satisfied. VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records and other pertinent records, as well as performing an examination or obtaining a medical opinion when one is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). Here, the Veteran's service treatment records, private medical records, and records pertaining to Workers Compensation are in the claims file. He has not identified any other records or evidence that remains outstanding. Thus, the duty to obtain relevant records on the Veteran's behalf is satisfied. See 38 C.F.R. § 3.159(c) (2013). The Veteran was provided a VA examination for his right knee disability in February 2013. As will be discussed in greater detail below, the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and provided an opinion supported by a rationale. The Board, therefore, concludes that the examination report is adequate for the purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, VA's duty to provide a VA examination is satisfied. Additionally, the Veteran has declined the opportunity to present testimony before a Veterans Law Judge. The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. Accordingly, VA's duty to notify and assist under the VCAA is satisfied, and the Board may proceed with appellate review. Analysis In a rating decision dated January 2007, the RO denied service connection for a right knee disability finding that there was no relationship shown between the Veteran's knee disability and his military service. The Veteran did not file a notice of disagreement or new and material evidence within one year, and the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2006). Even so, applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2013). The Veteran filed a claim to reopen in September 2009. A January 2010 rating decision declined to reopen on the basis that new and material evidence had not been submitted. A July 2013 Supplemental Statement of the Case reopened the Veteran's claim as new and material evidence had been submitted, but denied the claim on the merits. Although the RO has reopened the previously denied claim for service connection for a right knee disability, the Board is required to address this particular issue (e.g., the new and material claim) in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claim. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (holding that the statutes make clear that the Board has jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Thus, despite the fact that in the present case the RO has already determined that new and material evidence sufficient to reopen the Veteran's previously denied claim for service connection for a right knee disability has been received, the Board will proceed, in the following decision, to adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as 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) (2013). 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, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). At the time of the January 2007 denial, the evidence of record consisted of service treatment records (STRs), documenting an injury to the Veteran's right knee, in August 1966, resulting in a bruise and tenderness of the lateral aspect of his right knee cap, and private treatment records which documented a menisectomy the Veteran underwent in 1989. Service connection was denied on the grounds that no permanent residual or chronic disability subject to service connection was shown by the service treatment records or demonstrated by evidence following service, and no relationship between his knee problem and an event in service was shown. Service connection requires the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 247, 253 (1999). Since January 2007, the Veteran submitted a statement from his private physician, Dr. K., received in October 2010. This statement documented the Veteran's post-surgical symptoms of occasional locking of the right knee with some stiffness and soreness. The statement also noted that the right knee showed signs of mild to moderate osteoarthrosis. As this record came into existence after the issuance of the January 2007 rating decision, it could not have been considered by prior decision makers, and hence is new. Moreover, it is material as it addresses the unestablished fact of a residual or chronic disability, which was one of the elements of service connection lacking. In addition, in his substantive appeal, the Veteran reported that his knee did pop out and ache from time to time after service. The Veteran has thus also provided evidence of continuity of symptomatology. New and material evidence having been received, reopening of the previously denied claim of service connection for a right knee disability is warranted. Adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. As noted above, in order to establish service connection for the claimed disorder, there must be (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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson, 12 Vet. App. at 253. Service connection may be granted on a presumptive basis for certain chronic diseases, including arthritis, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity of symptoms after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to Hickson element (1), current disability, the Board notes that the February 2013 VA examination report indicated the Veteran had degenerative arthritis of the right knee. Additionally, the Veteran's private physician Dr. K. submitted a statement indicating the Veteran's right knee showed signs of mild to moderate osteoarthrosis. Thus, the first Hickson element, a current disability, is met. With respect to in-service disease and injury, the Veteran's service treatment records included a notation dated August 1966, of an injury the Veteran suffered to his right knee. The resulting diagnosis was bruise of the right knee. Therefore, the Board finds that Hickson element (2) is satisfied. With respect to crucial Hickson element (3), medical nexus, the Veteran was provided a VA examination for his right knee in February 2013. The examiner reviewed records relating to the Veteran's in-service right knee injury. The examiner noted that an August 1966 record documented an injury to the right knee, and that the examination was normal except for a finding of tenderness of the upper lateral portion of the right patella. He also indicated that an x-ray examination from August 1966, after the in-service knee injury occurred, was negative for significant bone or joint abnormality. The examiner also noted that on the Veteran's separation examination in 1970, the Veteran marked "NO" for "trick" or locked knee and "lameness." The examiner wrote that the Veteran said he first reported knee problems to Worker's Comp in about 1979 or 1980, adding that his knee finally "blew out completely" in 1988 and required arthroscopic surgery in 1989. The examiner reviewed the Veteran's private medical records which documented the surgery to repair a bucket handle tear of the medial meniscus in his right knee. The examiner noted that following the operation, the Veteran was diagnosed with chondromalacia of the medial femoral condyle. The examiner observed that the Veteran's service treatment records were silent for the bucket tear, but described bucket tear injuries as usually acute in nature or sub-acute at best, and added that this type of injury would not have happened in 1966 and then appeared in 1989. The examiner concluded that the Veteran's current right knee disability was less likely than not related to the Veteran's in-service injury. The examiner noted that the Veteran's service treatment records did not indicate any further complaints related to his right knee after his bruise in 1966. The examiner wrote that there were no records indicating chronicity of a right knee problem from the Veteran's separation in 1970 until his surgery in 1989, adding that by the Veteran's own report, his right knee injury was a post-service "on the job" injury. The examiner explained that there would be no direct relationship between the mild contusion in 1966 and the knee problems that began in the late 1970's and early 1980's as reported by the Veteran. When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the present case, the examiner's opinion was based on an interview of the Veteran, his medical history, review of the medical evidence of record (including x-rays), and physical examination. Further, a rationale was provided for the opinions rendered. Specifically, the examiner concluded that it was less likely than not that the Veteran's current right knee disability was linked to his military service. As indicated above, the examiner based this opinion on the absence of further complaints relating to the Veteran's right knee after the bruise in 1966 and the absence of records indicating chronicity of a right knee problem from separation in 1970 until the Veteran's surgery in 1989. The examiner also discussed the Veteran's statement that the condition precipitating his 1989 surgery was an "on-the-job" injury. The examiner further noted that there would be no direct relationship between the mild contusion the Veteran suffered in 1966 and his knee problems that began in the late 1970's and early 1980's. Thus, the examiner provided multiple bases for the opinion rendered, and his conclusions are fully explained and consistent with the evidence of record. To the extent that the Veteran believes that his right knee disability is related to his service, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that a layperson is competent to identify a simple condition such as a broken leg). VA provided the Veteran an examination based on the competency of his observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). As to the etiology of a right knee disability, such as arthritis, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d 1372. Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's right knee disability is related to his service, the Board ultimately affords the objective medical evidence of record, which fails to find a connection between the Veteran's disability and his military service, greater probative weight than the lay evidence. Regarding the Veteran's arthritis, the Board notes there is no evidence that any arthritis of the right knee was manifested during the one-year presumptive period after separation from active military service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board notes that the earliest documentation of arthritis in the record is from Dr. K.'s statement received in October 2010. Thus, consideration on a presumptive basis for arthritis is not warranted. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his right knee disability, and it finds that he has not done so. 38 C.F.R. § 3.309 (2013). The Board acknowledges the Veteran's competent statements that his right knee popped out and ached from time to time following service, and that he had minor problems with his right knee since service. However, the separation examination found no abnormalities with respect to the knee nor did the Veteran report any in the medical history. Consequently, the Board finds that the Veteran's statements as to continuity of symptomatology following the injury in service are not credible as they conflict with documents contemporaneous in time to discharge. Based on the evidence of record cited herein, the Board concludes that evidence for the claim of service connection for a right knee disability is outweighed by the evidence against the claim. Notably, the February 2013 VA examiner indicated that it was less likely than not that the current disability was incurred in or caused by the injury the Veteran suffered in 1966 and the reported knee problems that began in the late 1970's and early 1980's. Therefore, the Board finds that service connection for right knee disability is not warranted. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's right knee disability is not related to his active military service. Accordingly, the claim must be denied. ORDER New and material evidence having been received to reopen the claim of entitlement to service connection for a right knee disability, the appeal is granted to that extent only. Service connection for a right knee disability is denied. REMAND In a January 2010 rating decision, the RO continued a noncompensable evaluation in response to the Veteran's claim of entitlement to an increased rating for right inguinal hernia repair with residual scar. On a VA Form 9 substantive appeal received in October 2010, the Veteran stated that he wished to reopen his claim for an increased rating. As the Veteran indicated his intent to appeal to the Board by submitting his statement on a VA Form 9, the Board construes this as a timely notice of disagreement with the January 2010 rating. VA has yet to issue a statement of the case as to the issue of entitlement to an increased rating for right inguinal hernia repair with residual scar. 38 C.F.R. § 19.29 (2013). Therefore, the Board is obligated to remand it. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action. Furnish the Veteran a statement of the case as to the issue of an increased rating for right inguinal hernia repair with residual scar. Inform the Veteran that in order to perfect an appeal of the claim of an increased rating for right inguinal hernia repair with residual scar, the Veteran must still timely file a substantive appeal. The Veteran has the right to submit additional evidence and argument on the matter 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 remanded by the Board 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). ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs