Citation Nr: 1336184 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-28 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for hemorrhoids and, if so, whether service connection is warranted. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board has reviewed the Veteran's physical claims file, as well as the electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. In January 2013, the Board remanded the issues on appeal in order to schedule the Veteran for a Travel Board hearing. Pursuant to the Board's remand order, in May 2013, the Veteran presented testimony relevant to the appeal at a Board hearing before the undersigned Veterans Law Judge (VLJ), which was held in Nashville, Tennessee. In consideration of the foregoing, the Board finds that there was compliance with the Board's prior remand order. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). FINDINGS OF FACT 1. In the June 1992 rating decision, the RO denied service connection for hemorrhoids, on the basis that the service treatment records did not contain a diagnosis or complaint of hemorrhoids. 2. The Veteran did not appeal the June 1992 rating decision after being notified of his appellate rights, and no additional evidence was received within one year of the decision. 3. Evidence received since the June 1992 rating decision is either duplicative or cumulative of evidence previously considered or does not relate to a previously unestablished fact necessary to substantiate the claim. 4. The Veteran had a right knee injury during service. 5. The Veteran has had continuous right knee symptoms since service. 6. The Veteran currently has right knee degenerative joint disease. CONCLUSIONS OF LAW 1. The June 1992 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has not been received to reopen service connection for hemorrhoids. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.302 (2013). 3. Resolving reasonable doubt in the Veteran's favor, right knee degenerative joint disease was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107(a) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims 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 notify the claimant and the representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and 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). This 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). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and to establish entitlement to the underlying claim for the benefit sought by the claimant. The claimant must also be notified of what constitutes both "new" and "material" evidence to reopen the previously denied claim. The Court further held that, in the context of a claim to reopen, VA look at the bases for the denial in the prior decision and describe what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the August 2008 notice letter sent prior to the initial denial of the claim, the RO apprised the Veteran of the information and evidence necessary to substantiate the claims for service connection, which information and evidence that he was to provide, and which information and evidence that VA would attempt to obtain on his behalf. The RO advised him of what the evidence must show to establish entitlement to service-connected compensation benefits, and described the types of information and evidence that the Veteran needed to submit to substantiate the claims. The RO also explained what evidence VA would obtain and would make reasonable efforts to obtain on the Veteran's behalf in support of the claims. The RO further informed the Veteran how VA determines the disability rating and effective date once service connection is established. Also, in the August 2008 notice letter, the RO properly identified the June 1992 rating decision as the last prior denial of service connection for hemorrhoids, advised the Veteran that he needed to provide new and material evidence to reopen the claim, and provided the applicable definition of new and material evidence. The RO also explained that the claim was previously denied because service treatment records did not contain a diagnosis or complaint of hemorrhoids, and advised the Veteran to present evidence relating to the reason for the prior denial. In consideration of the foregoing, the Board finds that the VCAA notice requirements have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Regarding VA's duty to assist in claims development, the record contains all available evidence pertinent to the claims. VA has requested records identified throughout the appeal process. The Veteran was given appropriate notice of the responsibility to provide VA with any treatment records pertinent to the claims, and the record contains sufficient evidence to make a decision on the claims. The Veteran's complete service treatment records are of record, and pertinent post-service treatment records adequately identified as relevant to the Veteran's claims have been obtained or otherwise submitted. There are no additional treatment records found in the Veteran's Virtual VA file. The Veteran was not provided with a VA medical examination or medical opinion in this case. Indeed, because new and material evidence has not been received since the June 1992 denial of service connection for hemorrhoids, and service connection for right knee degenerative joint disease is being granted, there is no need to provide the Veteran with a VA medical examination or obtain a medical opinion. 38 C.F.R. § 3.159 (c)(4)(iii); see generally Soyini v. Derwinski, 1 Vet. App. 540 (1991) (holding that a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). In this case, the Veteran has reported receipt of Social Security disability benefits, and no attempt to obtain records from the Social Security Administration (SSA) has been made. See May 2009 private mental health treatment record (noting the Veteran's report of receiving Social Security disability benefits). However, the Veteran has repeatedly stated that he stopped working due to neck and back pain, so he has not asserted that such records are relevant to the current claims. See, e.g., the June 2003 and July 2003 VA Forms 21-4138 and the October 2003 VA medical examination report. Also, the service connection claim for hemorrhoids was previously denied because service treatment records showed no complaint or diagnosis for hemorrhoids; therefore, because there is no evidence of in-service injury or disease, any medical opinion that purported to relate the Veteran's current hemorrhoids to service that may be included in the SSA records would be based on an inaccurate factual premise of in-service injury or disease and would be of no probative value. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis, but cannot reject the opinion solely because the history was from the veteran); Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Such evidence of that is of no probative value cannot, ipso facto, be "material" evidence, as it provides no reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In consideration of the foregoing, the Board finds that records from the SSA are not relevant to the Veteran's claims; therefore, a remand to attempt to obtain SSA records is not necessary. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009) (holding that SSA records need not be obtained if they are not relevant or potentially relevant to a claim). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) 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. At the Board hearing, the VLJ clearly identified the issues on appeal and posed several questions during the hearing to clarify the Veteran's contentions, the onset and nature of symptoms, and past medical treatment received for the claimed disabilities. The VLJ also suggested that the Veteran submit a private medical opinion in support of the appeal of service connection for the right knee and held the record open for 30 days following the hearing in order to allow the Veteran the opportunity to provide the evidence. The VLJ additionally informed the Veteran that he could submit lay statements from individuals aware of his hemorrhoid condition while he was in the service. Neither the Veteran nor the representative has made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. In view of the foregoing, the Board will proceed with appellate review. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence); see also Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). New and Material Evidence Legal Criteria The issue of service connection for hemorrhoids was previously denied in a June 1992 rating decision, and the Veteran did not initiate an appeal of the decision. The Court has held that the focus of the Board's consideration as to whether a claim was one to reopen should be on "whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' . . . or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199 (2009). The current issue is grounded upon the same factual bases as the previously denied claim, and, as a general matter, it is appropriate for the Board to consider the current claim as a request to reopen the previously denied service connection claim for hemorrhoids. Boggs v. Peake, 520 F.3d. 1330 (Fed. Cir. 2008). For reasons explained below, the Board finds that the provisions of 38 C.F.R. § 3.156(b) and (c) are inapplicable to the claim; therefore, the June 1992 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996), it was determined that the statutory scheme in 38 U.S.C.A. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of new and material evidence regardless of the RO's determination as to that issue. The Board may not consider a previously and finally disallowed claim unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction (AOJ) by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim as an original claim for benefits. 38 C.F.R. § 3.156(c). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). New and Material Evidence Analysis In the June 1992 rating decision, the RO denied service connection for hemorrhoids on the basis that the service treatment records did not show diagnosis or complaint of hemorrhoids during service. The RO considered the service treatment records and post-service VA treatment records dated from June 1987 to July 1990. After reviewing the evidence received since the June 1992 rating decision, the Board finds that it does not qualify as new and material evidence and, therefore, is not sufficient to reopen the claim of service connection for hemorrhoids. At the time of the June 1992 denial, the RO considered the Veteran's report of treatment for a hemorrhoid at Fort McClellan, Alabama, in 1974 as reported on the April 1992 VA Form 21-526, as well as the report of hemorrhoidectomy in 1981 in a post-service VA treatment record. Also of record were service treatment records showing the Veteran's complaint of a bloody stool without pain or evidence of hemorrhoids or rectal masses in December 1974, the December 1974 lab results showing negative hemoccult testing, and the January 1975 report of medical history showing that the Veteran checked "No" when asked if he then had or ever had had piles or rectal disease. The evidence of record at the time of the June 1992 denial showed treatment for hemorrhoids several years after service but did not show complaint or diagnosis of hemorrhoids during active service. Evidence received since the June 1992 denial includes post-service private and VA treatment records, and the October 2003 VA medical examination report noting a diagnosis of status post hemorrhoidectomy. This evidence is cumulative of evidence previously considered by the RO when it denied the claim in June 1992 because it shows complaint and treatment for hemorrhoids several years after service. The evidence does not show hemorrhoids during service. Thus, the treatment records and VA medical examination report are not material, and they are insufficient to reopen the claim. Several written statements from the Veteran and the May 2013 Board hearing transcript have also been added to the record. Collectively, the statements and hearing testimony note the Veteran's assertion that the blood in his stool during service was a hemorrhoid symptom, and that periodic rectal bleeding later recurred and progressed after service eventually leading to the 1981 hemorrhoidectomy. However, the Veteran's assertion that he had a hemorrhoid and/or symptoms during service that he thought indicate hemorrhoid, as well as the service treatment record showing complaint of blood in the stool with no evidence of hemorrhoid, was previously considered by the RO when it denied the claim in June 1992. The Veteran's assertion that blood in his stool during service should be construed to show a diagnosis of hemorrhoids in service is merely cumulative of evidence previously considered, and does not qualify as new or material evidence. This statement is only a contention that VA should interpret evidence of record at the time of the June 1992 rating decision in a different way (i.e., that the blood in the stool was a symptom of hemorrhoids), which amounts to no more than a re-interpretation of the evidence, which does not even arise to the level of a new theory for service connection; therefore, the additional evidence is not new and material to reopen the claim. In summary, although a number of documents have been associated with the record since the June 1992 rating decision, to include additional written statements from the Veteran, the Board hearing transcript, additional post-service treatment records, and the October 2003 VA medical examination report, the additional evidence is not material to reopen the previously denied claim of service connection for hemorrhoids. The additional evidence still does not tend to show that the Veteran had hemorrhoids during service. The additional evidence, in the context of the previous evidence, only tends to show that the Veteran was first diagnosed with, and received treatment for, hemorrhoids several years after service separation. The Veteran's continued assertion that he had a hemorrhoid and/or hemorrhoid symptoms during service is not new evidence, but is merely a new contention as to how old evidence should be weighed. There was no evidence received within the one-year appeal period following the June 1992 rating decision, and no pertinent service records have been added to the record since the June 1992 rating decision; therefore, the new and material evidence provisions of 38 C.F.R. § 3.156(b) and (c) are inapplicable. For these reasons, the Board finds that the additional evidence received since the June 1992 rating decision does not raise a reasonable possibility of substantiating the claim for service connection for hemorrhoids; therefore, the claim cannot be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran is currently diagnosed with right knee degenerative joint disease (i.e., arthritis) and arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). 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. Service Connection for Right Knee Disorder Analysis The Veteran contends that his current right knee disability, diagnosed as degenerative joint disease, is related to a right knee injury sustained during service. As the Board is granting service connection for right knee degenerative joint disease based on right knee injury during service and continuous right knee symptoms since service, other potential theories for entitlement to service connection are rendered moot and will not be discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides questions of law or fact). After a review of all the lay and medical evidence of record, the Board finds that the Veteran sustained an injury to the right knee during service and has had continuous right knee symptoms since service. At the Board hearing, the Veteran credibly testified that he hyperextended the right knee during basic training and continued to have pain and hypertextension with the right knee throughout service but did not seek treatment. In this regard, the Board notes that, on the January 1975 service separation report of medical history, the Veteran checked "Yes" when asked if he then had or ever had had a "trick" or locked knee, which is consistent with the Veteran's hearing testimony that he sustained right knee injury during service, and continued to have right knee problems at service separation and since service. The Board is aware of post-service right knee injury in 1976, but notes that the right knee symptoms were continuous since service even before the post service-injury. The Veteran has also submitted a June 2013 treatment record wherein his treating physician notes that the Veteran's right knee degenerative joint disease is a progression of the in-service right knee injury. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a right knee degenerative joint disease have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER New and material evidence not having been received, the appeal to reopen service connection for hemorrhoids is denied. Service connection for right knee degenerative joint disease is granted. ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs