Citation Nr: 1335717 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-08 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability. 4. Entitlement to service connection for a left knee disability. (The issue of entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder will be the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from December 1994 to June 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from August and November 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The claims folder has been transferred to the jurisdiction of the Huntington, West Virginia RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in July 2013, and a transcript of the hearing is of record. The issue of entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder, which was remanded in April 2012 by another Veterans Law Judge of the Board for additional development, is not ripe for appellate review, and will be the subject of a separate decision of the Board. The now reopened claim of entitlement to service connection for a left knee disability is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim for entitlement to service connection for a low back disability was denied by an unappealed rating decision in November 2005. 2. Evidence received since the November 2005 rating decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a low back disability. 3. Degenerative disc disease of the lumbar spine was incurred as a result of service. 4. The claim for entitlement to service connection for a left knee disability was denied by an unappealed rating decision in November 2005. 5. Evidence received since the November 2005 rating decision raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a left knee disability. CONCLUSIONS OF LAW 1. The November 2005 rating decision that denied entitlement to service connection for a low back disability has become final. 38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. Evidence received since the November 2005 rating decision that denied entitlement to service connection for a low back disability is new and material; and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Degenerative disc disease of the lumbar spine was incurred as a result of service. 38 U.S.C.A. §§ 1110, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 4. The November 2005 rating decision that denied entitlement to service connection for a left knee disability has become final. 38 U.S.C.A. § 7105(c) (West 2002), 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005); currently 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 5. Evidence received since the November 2005 rating decision that denied entitlement to service connection for a left knee disability is new and material; and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). As the issues of new and material evidence to reopen the claims for service connection for a low back disability and for a left knee disability are granted in the decision below, and the reopened claim for service connection for a low back disability is granted, further discussion as to VA's duties to notify and assist with regard to such issues is rendered moot. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), it was held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The VLJ identified and explained the issues on appeal, and the Veteran's representative and VLJ asked questions to ascertain the nature of the Veteran's contentions with regard to the service connection issues on appeal. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claims. The VLJ apprised the Veteran of what additional evidence was needed to substantiate his claims on appeal. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claims New and Material Evidence Claims The Veteran seeks to establish service connection for a low back disability and for a left knee disability. The RO has declined to reopen the claims and has continued the denials issued in a previous final decision. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). In general, unappealed rating decisions are final. See 38 U.S.C.A. § 7104. A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, VA must reopen a finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. "If new and material evidence is presented or secured with respect to a claim that has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991); see also Knightly v. Brown, 6 Vet. App. 200 (1994). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unsubstantiated 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 prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). When a claim to reopen is presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). There must be new and material evidence as to any aspect of the Veteran's claim that was lacking at the time of the last final denial in order to reopen the claim. See Evans v. Brown, 9 Vet. App. 273 (1996). The Court recently held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In a November 2005 rating decision, the RO denied entitlement to service connection for a low back disability and for a left knee disability because there was no medical evidence of a chronic low back or left knee disorder due to service. Notice of the determination was issued later that same month. The Veteran filed a claim to reopen the claim for service connection for a low back disability in March 2008 and for a left knee disability in October 2008; and this appeal ensues from August and November 2008 rating decisions, which declined to reopen the claims for service connection for a low back disability and for a left knee disability. The evidence on file at the time of the November 2005 rating decision consisted of the Veteran's service treatment records and August and October 2005 evaluation reports for VA purposes. Medical history and examination reports dated in March 1994, July 1996, September 1997, October 1999, and January 2001 do not reveal any complaints or clinical findings of a low back or left knee disability. The Veteran complained on July 10, 2001 that he had thrown out his back; the assessment was acute sprain of the lumbar region, for which he was given medication. It was reported on July 23, 2001 that his low back pain had resolved. He was given a Temporary Physical Profile in October 2001 for back strain. He reported in June 2002 that he had thrown out his back; examination showed decreased back range of motion secondary to pain. The assessment was mechanical low back pain. X-rays showed rotatory scoliosis. Low back pain, resolved, was noted in July 2002. There were no complaints or clinical findings of a low back or left knee disability on September 2003 medical history and medical examination reports. An assessment of lumbago was noted in April 2004. The Veteran complained of left knee pain on September 21, 2004; and the assessment was left knee injury. The left knee pain was reported to have resolved on a September 30, 2004 treatment report. The Veteran complained on a May 2005 medical assessment report of lower back problems. The assessments on an evaluation for VA purposes in August 2005 were low back pain, several acute episodes, which have completely resolved; and chronic bilateral knee pain, normal examination with full range of motion. An October 2005 psychiatric evaluation for VA purposes is also of record. The evidence received by VA since the November 2005 rating decision consists of VA and private treatment records dated from June 2005 to July 2013 and the Veteran's July 2013 videoconference hearing testimony and his written statements. This evidence includes a March 2008 medical report from J. J. Schindler, M.D., with the diagnoses of low back pain; limb pain, leg; disc degeneration; and intervertebral disc disease, no myelopathy. Private treatment records for September 2008 reveal the notation of an eight year history of lumbar pain that occurred while on active duty likely secondary to his job as a special forces parachute member. Chronic knee pain was also reported. A February 2010 MRI of the lumbar spine revealed a small left central disc protrusion at L4-L5 and L5-S1. The VA examiner diagnosed chronic low back pain and concluded that it was more likely than not that this was the result of service. VA treatment records for December 2010 reveal contain an assessment of knee pain, suspect patellofemoral syndrome. A July 2013 medical report from P. Ignatiadis, M.D., reveals a diagnosis of degenerative disc disease of L4-L5, most likely traumatic. According to Dr. Ignatiadis, when the Veteran's age, his 11 years as a parachute, and his complaints of pain are taken into consideration, "his occupation has contributed to more than 80 percent of his condition currently while he was in the military." The Board has reviewed the evidence received into the record since the November 2005 RO denial and finds that new and material evidence has been received sufficient to reopen the claims for service connection for a low back disability and for a left knee disability. Evidence received since the November 2005 RO denial is new because it had not previously been received by VA, and it is material because it relates to an element of service connection that was missing at the time of the prior final denial, specifically, that the Veteran has a current clinical diagnosis indicative of low back and left knee disabilities. This evidence raises a reasonable possibility of substantiating the claims for service connection for a low back disability and for a left knee disability, as it bears upon one element of a claim for service connection. Therefore, new and material evidence has been received and the claims for service connection for a low back disability and for a left knee disability are reopened. The Board must consider whether the Veteran will be prejudiced if the Board proceeds to consider his claim for service connection on the merits. Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran has made arguments on the merits of the claim throughout the appeal period. He has also had the opportunity to submit evidence and offer testimony on the merits of the claim. In light of the favorable grant of benefits, there is no possibility of prejudice by the Board's adjudication, in the first instance, of the claim for service connection for a low back disability on the merits. Curry v. Brown, 7 Vet App 59 (1994). Service Connection Claim The Veteran has contended, including at his July 2013 videoconference hearing, that he complained of low back disability beginning in service and that he has had low back disability continually since service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain disabilities, including arthritis, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As indicated above, the Veteran's service treatment records show complaints of low back disability beginning in July 2001. Although it was noted that his low back pain resolved in July 2001, he was given a Temporary Physical Profile for back strain in October 2001. Mechanical low back pain was noted in June 2002, and lumbago was diagnosed in April 2004. He continued to complain of low back problems on his May 2005 Report of Medical Assessment. His low back pain was considered to have resolved when he was evaluated in August 2005. It was noted in the Veteran's DD Form 214, Certificate of Release or discharge from Active Duty, that his primary specialty was parachutist weather craftsman for ten years and three months. Low back pain was noted in VA treatment reports dated in July 2007. X-rays of the back were considered normal. Dr. Schindler diagnosed of low back pain, disc degeneration, and intervertebral disc disease in March 2008. Private treatment records for September 2008 reveal the notation of an eight year history of lumbar pain that occurred while on active duty likely secondary to his job as a special forces parachute member. A February 2010 MRI of the lumbar spine revealed a small left central disc protrusion at L4-L5 and L5-S1. The VA examiner diagnosed chronic low back pain and concluded that it was more likely than not that this was the result of service. A July 2013 medical report from P. Ignatiadis, M.D., reveals a diagnosis of degenerative disc disease of L4-L5, most likely traumatic. Dr. Ignatiadis concluded that the Veteran's duties as a parachutist in service for over ten years contributed to his current low back disability. The Veteran testified at his videoconference hearing in July 2013 that he has had continual problems with his low back since service, that he sought treatment within the initial year after service discharge at Kadena Air Base, and that his low back disability has been medically related to his military service. Also added to the claims folder in July 2013 is a record of the Veteran's multiple parachute jumps while in service. The evidence of record reveals that the Veteran complained of low back pain in service, that he was a parachutist in service for more than ten years, that he continued to complain of low back pain in treatment records after discharge, and that there are nexus opinions in September 2008, February 2010, and July 2013 in favor of the claim for service connection for a low back disability. Consequently, the Board concludes that service connection is warranted for low back disability, which was diagnosed as degenerative disc disease in July 2013. ORDER New and material evidence having been received, the Veteran's claim for entitlement to service connection for a low back disability is reopened. Service connection for degenerative disc disease of the lumbar spine is granted. New and material evidence having been received, the Veteran's claim for entitlement to service connection for a left knee disability is reopened, and to that extent only, the appeal is granted. REMAND The Board has found that new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. As such, the Board must consider whether the Veteran will be prejudiced if the Board proceeds to consider his reopened claim for service connection for a left knee disability on the merits de novo prior to RO consideration of the reopened claim on the merits de novo. Bernard v. Brown, 4 Vet. App. 384 (1993). Although there are recent findings of left knee pain, as well as a diagnosis of suspected patellofemoral syndrome in December 2010, there is no post-service VA examination with a nexus opinion on whether the Veteran has a left knee disorder due to service or whether the Veteran's left knee disability is proximately due to or chronically aggravated by his now service-connected degenerative disc disease of the low back. Consequently, a nexus opinion is needed prior to final Board adjudication. VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2013), an examination will be requested whenever VA determines, as in this case, that there is a need to confirm the existence and to verify the etiology of a disability. See also 38 C.F.R. § 3.159 (2013). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will take appropriate action to contact the Veteran and ask him to provide the names, addresses and approximate dates of treatment for all health care providers, including VA, who may possess additional records pertinent to treatment for a left knee disability, that are not currently on file, such as treatment records dated after the most recent medical evidence on file dated in July 2013. After obtaining any necessary authorization from the Veteran for the release of his private medical records, the RO/AMC will obtain and associate with the file all identified records, VA and private, that are not currently on file. If the RO/AMC is unsuccessful in obtaining any such records identified by the Veteran, it should inform the Veteran of this and request him to provide a copy of the outstanding medical records if possible. 2. The RO/AMC will then schedule the Veteran for a VA examination by an appropriate health care provider to determine the nature and etiology of any current left knee disorder. The following considerations will govern the examination: a. The claims folder, including a copy of this remand, and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. b. After reviewing the claims files and examining the Veteran, the examiner must provide an opinion on whether it is at least as likely as not that any left knee disability identified at any time since service, even if later resolved, is etiologically related to service, or is proximately due to or chronically aggravated by his service-connected degenerative disc disease of the lumbar spine. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If the examiner is unable to render an opinion without resort to speculation, he or she must so state, and explain why. d. If the examiner responds to the above inquiry that he/she cannot so opine without resort to speculation, the examiner must clarify whether there is evidence that must be obtained in order to render the opinion non-speculative. Thereafter, the RO/AMC must attempt to obtain such evidence. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Any necessary tests or studies must be conducted, and all clinical findings will be reported in detail and correlated to a specific diagnosis. The report prepared must be typed. 3. The RO/AMC must notify the Veteran that it is his responsibility to report for the above examination and to cooperate in the development of the claim. 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 (2013). In the event that the Veteran does not report for a VA examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address of record. It will also be indicated whether any notice that was sent was returned as undeliverable. 4. The RO/AMC should then re-adjudicate the Veteran's claim for service connection for a left knee disability, to include as secondary to service-connected disability, based on all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran will be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant 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 RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs