Citation Nr: 1335012 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-37 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for degenerative joint disease (DJD) of the right knee. 2. Entitlement to an increased rating for PTSD, currently rated as 30 percent disabling. 3. Entitlement to an increased compensable rating for malaria. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from August 1968 to August 1970 with the U.S. Marine Corps with subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (IDT) with the Texas Army National Guard (ARNG). The Veteran had service in the Republic of Vietnam. This case is before the Board of Veterans' Appeals (Board) on appeal from November 2008 and December 2009 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Historically, by rating action in December 1975, the RO denied service connection for a right knee disorder. In making that determination, the RO noted the absence of evidence showing a right knee injury or any right knee treatment in service. In addition, the evidence revealed that the Veteran was injured in a January 1973 automobile accident (about 21/2 years after active service). No appeal was perfected as to this determination and no new and material evidence was received within one year of its issuance. Accordingly, that decision became final. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). By unappealed rating actions in October 2007 and March 2008, the RO determined that new or material evidence had not been provided to reopen the claim. No new and material evidence was received within one year of these determinations and therefore they became final. By rating action in December 2009, the RO denied service connection for DJD of the right knee. The Veteran appealed this determination. The appellant testified at a personal hearing before the undersigned Veteran's Law Judge at the RO in May 2013. A transcript of his testimony is associated with the claims file. It is noted that the provisions of 38 C.F.R. § 3.103(c) (2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the May 2013 hearing, the undersigned asked questions designed to substantiate the claim and identify any outstanding evidence. Additionally, the Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant. The appeal as to the issue of entitlement to service connection for DJD of the right knee, on the merits, and the increased rating claim for PTSD is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In a March 2008 rating decision, the RO determined that new and material evidence had not been provided to reopen the claim. The Veteran did not appeal this determination and no new and material evidence was received within one year of its issuance. 2. The evidence received since the March 2008 rating decision is neither cumulative nor redundant of evidence of record at the time of the prior denial, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran's service-connected malaria is inactive, with no current residuals. CONCLUSIONS OF LAW 1. As the evidence received since the March 2008 rating decision is new and material, the claim of service connection for DJD of the right knee is reopened. 38 U.S.C.A. § 5103, 5103A, 5107, 5108, 7104 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.156 (2013). 2. Throughout the rating period on appeal, the criteria for an increased (compensable) rating for malaria have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.321, 4.1- 4.14, 4.104, Diagnostic Code 6304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The instant decision grants the Veteran's petition to reopen his previously denied claim of service connection for DJD of the right knee, and remands for additional development. Therefore, no further discussion of VCAA compliance of that issue is required at this time. With respect to the increased rating claim for malaria, the Veteran was sent a letter in October 2009 that fully addressed all notice elements and was issued prior to the December 2009 unfavorable rating decision for the claim discussed herein. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The communication also explained how VA establishes disability ratings and effective dates. For the foregoing reasons, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims folder contains the Veteran's service personnel and treatment records, as well as all identified and available post-service treatment records. The Board has also carefully reviewed the Veteran's written statements and concludes that no available outstanding evidence has been identified. A review of Virtual VA does not reveal any additional documents pertinent to the present appeal. Also, the Veteran was afforded a VA examination, most recently in April 2012, to evaluate the severity of his malaria. The Board finds that the VA examinations are adequate because, as shown below, they were based upon consideration of the pertinent medical history, the Veteran's lay assertions and current complaints, and because they describe the disabilities symptomatology in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that PTSD and malaria symptoms have materially increased in severity since the most recent evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. New and material evidence to reopen a claim of service connection for DJD, right knee The Veteran was first denied service connection for a right knee disability in December 1975. At that time, the RO found that the service treatment records failed to demonstrate any right knee problems and that the Veteran suffered a motor vehicle accident following service in 1973. The Veteran did not appeal that determination and no new and material evidence was received within one year of its issuance. Thus, that decision became final. 38 U.S.C.A. § 7105. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Under the revised standards, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence in question is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). See Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). In Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010), the Court held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. The Veteran sought to reopen his claim following the initial denial in December 1975. The RO denied such requests in unappealed decisions, the last of which was issued in March 2008. The evidence of record at the time of the RO's March 2008 last final denial included the Veteran's statement in support of claim dated in January 2008 and North Texas VA Health Care records dated from April to June 2007. The evidence also included the Veteran's initial application for VA compensation benefits, including service treatment and post service treatment records. Evidence associated with the claims file since March 2008 includes a July 2010 VA examination report and the Veteran's May 2013 Board hearing testimony, in which he described the circumstances of his right knee injury and continuous symptoms. Presuming the credibility of this evidence, and applying the law with a broad and liberal interpretation, his allegations and his hearing testimony provide additional detail as to an in-service injury and thus relate to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As new and material evidence has been received, the claim for service connection for DJD, right knee is reopened. 38 U.S.C.A. § 5108. III. Increased Ratings In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the case with the PTSD claim, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability picture relative to the Veteran's malaria has been largely consistent across the appeals period and staged ratings are not warranted. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4 (2013), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2013). Malaria By rating action in March 1971 service connection for malaria was granted and a 10 percent rating was assigned from August 29, 1970; a noncompensable evaluation was assigned from August 29, 1971. In September 2009, the Veteran requested that his service- connected malaria be re-evaluated for a higher (compensable) rating. At an October 2009 VA examination, the Veteran reported night sweats and chills, but was not currently being treated for malaria. He reported passing out for short periods of time and loss appetite worse in fall, winter, and early spring. Current symptoms were weakness, stomach sickness, sweats, bad dreams, and hallucinations. The examiner noted no evidence of malnutrition, vitamin deficiency, or any organ involvement. A malaria smear revealed only malaria antibodies. In an April 2012 VA examination the examiner reviewed the claims files and medical records. In-service treatment in September 1969 for p vivax and falciparum malaria was noted. After treatment, he had a negative malaria smear and he was returned to active duty. The Veteran reported continuation of symptoms after separation from service for 10 years. Various physicians told him that the malaria had resolved. The examiner noted that the malaria had been inactive since September 1969 and none of the Veteran's reported symptoms were attributed to malaria. A malaria smear in October 2009 was also negative. The Veteran's malaria did not impact his ability to work. Prior testing revealed malaria antibodies but no evidence of malaria parasites. The Veteran had tested negative for recurrence of malaria on two separate occasions involving blood smears. It was also noted that it had been 50 plus years since the Veteran contracted malaria and he had been thoroughly treated. The examiner noted that the Veteran did not have any symptoms or residuals related to his remote history of malaria. The examiner indicated that the disease was not currently present or active. It was the examiner's opinion that the malaria antibodies found in the 2 documented malaria smears represented evidence of inactive disease. The Veteran's service-connected malaria has been rated under Diagnostic Code 6304, which provides that a 100 percent evaluation is assigned for malaria during periods of active disease, confirmed by the "presence of malarial parasites in blood smears." When inactive, malaria is to be rated based on residuals such as liver or spleen damage under the appropriate systems. 38 C.F.R. § 4.88b, Diagnostic Code 6304. The April 2012 VA examiner reported that the Veteran did not have any symptoms or residuals related to his remote history of malaria. The examiner indicated that the disease was not currently present or active. The Board also notes that in the earlier October 2009 VA examination, the examiner specifically noted no evidence of any organ involvement. A malaria smear revealed malaria antibodies but no malaria parasites. Thus, there is no evidence of active disease at any time during the pendency of the claim, or for many years prior. The Board also notes that there is no evidence of any residual involvement of any other body system or organs. Based on the evidence of record, the Board finds that an increased (compensable) rating for malaria is not warranted. The record does not contain competent evidence that the Veteran has active malaria or any ascertainable residuals of malaria. As there is no medical evidence of active disease or any residual disability, there is no basis to award a compensable rating. 38 C.F.R. § 4.88(b), Diagnostic Code 6304. Thus, the claim must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against assignment of any compensable rating, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Extraschedular considerations Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321 (b) (1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology related to his malaria, and provides for higher ratings for more severe symptoms. As the disability pictures are contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, an additional referral for extraschedular consideration at this time is not required under 38 C.F.R. § 3.321(b) (1). ORDER As new and material evidence has been received to reopen the claim of service connection for DJD of the right knee, the appeal to this extent is granted. Entitlement to an increased (compensable) rating for malaria is denied. REMAND The Board finds that additional development is required before a decision can be rendered on the merits of the claim for service connection for a right knee disability and with respect to the increased rating claim for PTSD. As an initial matter, the record reflects that the Veteran had active service from August 1968 to August 1970 with the U.S. Marine Corps. He had additional periods of ACDUTRA and IDT with the Texas ARNG extending from approximately March 1976 to March 1981. While there are copies of some Texas ARNG personnel and treatment records in the claims file, it does not appear that complete Texas ARNG records have been associated with the claims file. Additionally, there are no records identifying his periods of ACDUTRA and IDT or any treatment records regarding the right knee. As these records are clearly pertinent to the claim, inasmuch as they may reveal evidence as to the onset and continuity of symptomatology, they must be sought. Regulations provide that efforts must be made to secure such outstanding records, and with federal records, 38 U.S.C.A. § 5103A(b)(3) requires that VA continue any attempts to get federal records "until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." On remand, the agency of original jurisdiction (AOJ) should attempt to associate any and all records describing the Veteran's periods of ACDUTRA and IDT with the claims file. All periods of service, including active duty, ACDUTRA, and IDT should be verified through appropriate channels. The Veteran is apparently no longer a member of the Texas ARNG. His separation or retirement date should also be determined. If any additional ARNG records are obtained, then the claims file should be returned to the July 2010 examiner for an addendum opinion. The examiner should state whether such new evidence changes his prior conclusions. Additionally, as the Veteran underwent a partial meniscectomy in 1975, his right knee disorder would be deemed to preexist his ARNG service following that date. (While the Veteran has indicated his ARNG service began in 1974, records currently associated with the claims file appear to indicate such service from 1976.) The record does not presently contain an opinion as to whether ARNG service aggravated the preexisting right knee injury. Thus, such opinion should be provided. Regarding the PTSD claim, an April 2009 VA record indicated that the Veteran was being followed by the mental health clinic. However, aside from a single record dated in August 2009, the file is absent any mental health treatment reports dated after 2007. It appears highly likely, then, that additional records remain outstanding. Additional efforts must be undertaken to associate these reports with the claims folder. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his right knee disorder should also be obtained. See 38 U.S.C.A. § 5103A (b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran an updated VCAA letter informing him of the requirements for substantiating a claim of entitlement to service connection based on aggravation of a pre-existing condition by military service. 2. Contact the appropriate Federal sources and the Texas ARNG and ask each of the agencies/units/ organizations to confirm the Veteran's dates of ARNG service to include specific dates (not retirement points) for the Veteran's periods of ACDUTRA and IDT. 3. Conduct an additional search for any outstanding ARNG service treatment records from the appropriate repository of records pertaining to the Veteran's periods of ACDUTRA and IDT. If the appropriate repository of records has no records, request that it provide guidance as to where such records might be located and request records from any location suggested. 4. Add to the record any VA mental health treatment reports dated from 2008 onward. Also associate with the file any VA orthopedic records dated since the last VA examination in July 2010. If no additional records are found, this should be noted in the claims file. 5. Thereafter, if additional evidence is received in response to the above actions or otherwise, the claims file should be returned to the July 2010 examiner (or another comparably qualified examiner if that individual is no longer available) for an addendum opinion. Specifically, the examiner must comment on whether, based on review of the record to include the additional evidence, it is at least as likely as not that a right knee disability was incurred during the Veteran's active duty service. Moreover, the examiner should state whether it is at least as likely as not that any right knee disorder shown prior to ARNG service was aggravated (permanently worsened beyond the natural progression of the disease) by such service. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The RO must clearly set forth for the examiner each of the Veteran's periods of active duty, ACDUTRA and IDT service in connection with the opinion request. If the examiner determines that an opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he or she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner is undertaken so that a definite opinion can be obtained.) 6. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 7. The RO/AMC will then readjudicate the Veteran's claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369(1999). This 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 Supp. 2013). ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs