Citation Nr: 1335491 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-40 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for disability manifested by bilateral leg pain. 2. Entitlement to service connection for a disability manifested by bilateral leg pain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to April 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2011, the Board remanded the claim to afford the Veteran a videoconference or personal hearing before the Board at the location where he is incarcerated or at a federal building in the general area where he is incarcerated. Efforts were made to accommodate the Veteran however they were unsuccessful. In a December 2011 statement, the Veteran's representative requested that the scheduled hearing be canceled and asked that the Board proceed with further appellate consideration. In November 2011 the RO issued a statement of the case (SOC) pertinent to the issue of entitlement to service connection for an acquired psychiatric disability. The Veteran however did not submit a substantive appeal within 60 days of the issuance of the SOC. The psychiatric claim is therefore not in appellate status. FINDINGS OF FACT 1. In unappealed January 2000 and January 2002 rating decisions, the RO denied service connection for a bilateral leg disability. 2. The new evidence received since the last final rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral leg disability and raises a reasonable possibility of substantiating that claim. 3. A disability of the right leg manifested by pain is not currently shown. 4. The Veteran's left knee osteoarthritis first manifested more than one year after separation from service and his current left leg disability is not attributable to service. CONCLUSIONS OF LAW 1. The RO's January 2000 and January 2002 rating decisions which denied service connection for a bilateral leg disability are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral leg disability. 38 U.S.C.A. §§ 5108, 5107 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria to establish service connection for a bilateral leg disability are not met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim: 1) Veteran status, 2) existence of a disability, 3) relationship between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, if notice was not provided prior to initially adjudicating the claim or, if provided, was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is preserved, so not frustrated, in that the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Given the favorable disposition of the request to reopen this claim, all notification and development actions needed to fairly adjudicate that portion of the claim have been accomplished. Throughout his attempts to obtain service connection of a bilateral leg disorder the Veteran was provided notice letters in October 2001, June 2006, August 2006, September 2006, February 2008, and January 2009. Collectively, these letters notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He has also been advised as to how disability ratings and effective dates are assigned. See Dingess, supra. And after all notice was provided to him, his claim was then readjudicated by way of an SSOC issued in August 2009. He has therefore received all required notice concerning his claim, and it has been reconsidered since providing all required notice. VA's duty to assist includes assisting him in obtaining his service treatment records (STRs) and pertinent post-service treatment records (VA) and providing an examination when needed to assist in deciding the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished to the extent possible and, therefore, appellate review of this claim may proceed without unduly prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's STRs, VA medical evidence, medical evidence from the North Carolina Disability Determination Services, North Carolina Department of Corrections, and the Veteran's contentions. The Veteran has not identified, and the record does not otherwise suggest, any additional existing evidence that is necessary for a fair adjudication of this claim that has not been obtained and that is obtainable. He has received all essential notice, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). V A's duties to notify and assist him with this claim have been satisfied. Petition to Reopen Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. §7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2013). To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence is not presented or secured. Butler v. Brown, 9 Vet. App. 167, 171 (1996). When determining whether a claim should be reopened, the credibility of the newly- submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that when evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. "New" evidence is defined as 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) (2013). In a January 2000 rating decision, the RO denied the Veteran's service connection for a bilateral leg disability because there was no evidence of a current disability. After the issuance of a VCAA letter, the RO, in a January 2002 rating decision, the RO readjudicated the case and ultimately denied the Veteran's service connection claim for a bilateral leg disability. The Veteran did not appeal those rating decisions and they therefore became final. In June 2006, the Veteran sought to reopen his previously denied service connection claim for a bilateral leg disability. Evidence received since the last final decision includes additional VA medical evidence and statements from the Veteran, as well as medical records from the North Carolina Department of Corrections. Notably, x-rays of the left knee taken in December 2007 show evidence of osteoarthritis. The fact that the Veteran currently has a leg disability relates to an unestablished fact necessary to substantiate the claim. New and material evidence has therefore been received and the claim will be reopened. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d) (2013). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), 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). The most fundamental requirement for any claim for service connection is that the Veteran must first establish he or she has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); cf. McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board must assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). The Veteran asserts that he has a bilateral leg disability that is related to his active service. Considering the pertinent evidence of record in light of the applicable law, the Board finds that the preponderance of the evidence is against the claim and service connection for a bilateral leg disability, to include arthritis of the left knee, is not warranted. a. Right Leg The Veteran currently reports having pain in his legs. Pain alone is not a disability for which service connection may be granted. Therefore, for a grant of service connection, the evidence must indicate the presence of a diagnosed disorder related to service causing leg pains. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, is not a disability). The Board has reviewed the record and finds no evidence showing that the Veteran has been diagnosed with a right leg disability manifested by pain since the filing of this claim. Therefore, service connection cannot be granted as a matter of law. 38 U.S.C.A. § 1131; Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (generally observing that in the absence of proof of a current disability, there can be no valid claim. Accordingly, the preponderance of the evidence is against the service connection claim for a disability manifested by right leg pain, and under these circumstances, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. §§ 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). b. Left Leg There is evidence of a current disability of the left leg. Specifically, there is x-ray evidence of osteoarthritis of the left knee since the filing of this claim. See December 2007 private x-ray report. However, the Veteran's STRS do not show any complaints, treatment, and/or diagnoses pertinent to the left leg, including the knee. Prior to his separation from service, he specifically denied having had swollen joints and a "trick" or locked knee on a Report of Medical History dated in March 1980. He did indicate that he was in poor health but a leg disability was not among those he noted on the report. Additionally, clinical evaluation of the lower extremities during the separation examination in March 1980 was normal. The Board affords great probative value to STRs and examination reports. They are probative both as to the Veteran's subjective reports and their resulting objective findings. The STRS in particular were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Service connection for degenerative changes in the left knee, to include osteoarthritis, based on chronicity or continuity of symptomatology is for consideration, as arthritis is a chronic disease listed in 38 C.F.R. § 3.309(a). The Veteran has not actually asserted that he has had continuing leg complaints since service and the record does not support the claim based on chronicity or continuity of symptomatology. Shortly after his separation from service, in July 1980 the Veteran filed a compensation claim with VA for various disabilities, but there was no mention of a disability of the leg, and no pertinent diagnosis was shown on the July 1980 VA compensation examination report. In September 1981, the Veteran filed an additional compensation claim with VA but did not mention a disability of the leg. When evaluated for state disability benefits in December 1994, the Veteran reported that he sustained an injury to his left knee in 1983 after jumping from a fourth floor window. See December 1994 North Carolina Disability Determination Evaluation report. At that time, x-rays of his left knee showed evidence of very slight arthritis. See December 1994 statement from Forsyth Radiological Associates, P.A. The Board emphasizes that this left knee diagnosis was rendered approximately fourteen years after service discharge. Although not dispositive by itself, the absence of any indication of a relevant medical complaint until many years after service is relevant in determining whether a disease or an injury in service resulted in chronic or persistent residual disability. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no competent medical evidence which establishes a relationship between any current leg disability and service. The Veteran has not offered any competent reason to support his contention that his current leg disability is related to his period of service. In addition to the medical evidence, the Board has considered the Veteran's contention that he has a current leg disability related to service. Although he is competent to comment on symptoms he may have personally experienced, such as pain in the leg, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the etiology of his leg disability, because this requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His statement as to etiology is not considered competent medical evidence and does not serve to link the disability to service. Therefore, to the extent he has asserted that he has leg disability, to include left knee arthritis, related to service, the Board finds such assertions to be of little probative value. Additionally, there is no evidence that the Veteran has arthritis of the left knee which manifested itself to a compensable degree within one year of his separation from military service. Rather, as noted, x-ray evidence of left knee arthritis is not shown in the record until December 1994. Thus, service connection is not warranted on a presumptive basis. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board concludes that there is simply no competent evidence which supports the claim. Accordingly, for the reasons stated above, the Board is denying service connection for a bilateral leg disability. The preponderance of the evidence is unfavorable, and the benefit-of-the-doubt doctrine does not apply. ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral leg disability is reopened. Service connection for a bilateral leg disability, to include left knee osteoarthritis, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs