Citation Nr: 1337182	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  09-20 683	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for a pituitary gland disorder. 

2.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left shoulder disorder and, if so, whether service connection, to include as secondary to service-connected left knee disability, is warranted.  

3.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right shoulder disorder. 

4.  Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disorder and, if so, whether service connection, to include as secondary to service-connected left knee disability, is warranted.  

5.  Entitlement to a rating in excess of 10 percent prior to March 4, 2013, for degenerative joint disease of the left knee status post left total knee replacement with scarring.  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Fussell, Counsel


INTRODUCTION

The Veteran had active service from September 1980 to April 1984.  

This matter comes before the Board of Veterans' Appeals on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.    

During the course of the appeal, an October 2013 rating decision recharacterized the Veteran's service-connected left knee disability from chondromalacia patella of the left knee to degenerative joint disease of the left knee status post left total knee replacement with scarring and granted a temporary 100 percent rating, effective March 4, 2013, pursuant to 38 C.F.R. § 4.30 (2012), and a 30 percent rating, effective May 1, 2014.  Therefore, such issue has been characterized as shown on the first page of this decision.

The Board notes that an appeal with respect to the issues of whether new and material evidence has been received in order to reopen claims for service connection for a schizoaffective disorder with a history of depression and dysmenorrhea was also perfected.  However, by a November 2010 statement, the Veteran withdrew such claims.  Therefore, they are no longer properly before the Board.  See 38 C.F.R. § 20.204(a) (2012).  

In her May 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO.  As such, she was advised in a February 2010 letter that she had been scheduled for her requested Board hearing for March 9, 2010.  However, she failed to attend such scheduled Board hearing.  Therefore, the Veteran's request for a Board hearing is considered withdrawn.  38 C.F.R. § 20.704(d) (2012).  

In December 2007, the Veteran filed a claim for service connection for "pituitary gland/hormone imbalance."  The May 2008 rating decision appealed denied service connection for a pituitary gland condition.  As will be explained, the evidence indicates that the Veteran does not have pathology of the pituitary gland but records from the Social Security Administration indicate that she has hypothyroidism.  If the Veteran feels that she had a hormone imbalance due to hypothyroidism (as opposed to pituitary gland pathology) she or her representative should contact the RO to file a claim.     

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims.  A review of the Virtual VA paperless claims processing system reveals October 2013 VA examination reports referable to the Veteran's posttraumatic stress disorder (PTSD) and left knee disability, which have not been considered by the agency of original jurisdiction (AOJ) in connection with her appeal.  However, as the issue of PTSD is not currently before the Board and the issue of entitlement to an increased rating for her left knee disability is being remanded, the AOJ will have an opportunity to review such evidence in the first instance.  Therefore, there is no prejudice to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand.  Virtual VA does not reveal any additional document pertinent to the present appeal with the exception of the Veteran's representative's August 2013 Written Brief Presentation.

The reopened claims of entitlement to service connection for left shoulder and right knee disorders and the issue of entitlement to a rating in excess of 10 percent for chondromalacia of the left patella are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  No pathology or disability of the pituitary gland is shown by competent evidence at any time before or during the current appeal period.  

2.  In a final decision issued in April 2003, the RO denied the reopening of claims for service connection for left shoulder, right shoulder, and right knee disorders.

3.  Evidence added to the record since the final April 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims for service connection for a left shoulder disorder.  

4.  Evidence added to the record since the final April 2003 denial is cumulative or redundant of the evidence of record at the time of the decision and does not raise a reasonable possibility of substantiating the Veteran's claim for service connection for a right shoulder disorder.  

5.  Evidence added to the record since the final April 2003 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claims for service connection for a right knee disorder.  


CONCLUSIONS OF LAW

1.  The criteria for service connection for a pituitary gland disorder are not met.  38 U.S.C.A. §§ 1101, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).  

2.  The April 2003 rating decision that denied the reopening of claims for service connection for left shoulder, right shoulder, and right knee disorders is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2002) [(2012)]. 

3.  New and material evidence has been received to reopen the claim of entitlement to service connection for a left shoulder disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

4.  New and material evidence has not been received to reopen the claim of entitlement to service connection for a right shoulder disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).  

5.  New and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disorder.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011).  Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements in regard to new and material evidence claims require VA to send a specific notice letter to the claimant that: (1) notifies him or her of the evidence and information necessary to reopen the claim (i.e., describes what is meant by new and material evidence); (2) identifies what specific evidence is required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial on the merits; and (3) provides general VCAA notice for the underlying service connection claim.

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA 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.  Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  	

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.  

As the Board's decision to reopen the Veteran's claims of entitlement to service connection for left shoulder and right knee disorders is completely favorable, no further action is required to comply with the VCAA and implementing regulations.  However, consideration of the merits of the issues is deferred pending additional development consistent with the VCAA.

As pertinent to the Veteran's claim for service connection for a pituitary gland disorder and her application to reopen her claim of entitlement to service connection for a right shoulder disorder, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a December 2007 letter, sent prior to the initial unfavorable decision issued May 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection and new and material evidence claims as well as his and VA's respective responsibilities in obtaining such evidence and information.  With regard to the Veteran's application to reopen the previously denied claim for service connection for a right shoulder disorder, the Board finds that the December 2007 letter complied with the provisions of Kent, supra.  Specifically, such letter informed the Veteran that such claim had previously been denied in September 2002 on the basis that her service treatment records did not show she was treated for a right shoulder injury on active duty and the evidence did not show that a current right shoulder disorder was related to her military service.  The letter also informed her of the definition of new and material evidence as well as the evidence and information necessary to substantiate her underlying service connection claim.  Additionally, as relevant to both claims, the December 2007 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

Relevant to the duty to assist, the Veteran's service treatment and personnel records, post-service VA and private treatment records, and records from the Social Security Administration (SSA) have been obtained and considered.  The Veteran has not identified any additional, outstanding records that have not been requested or obtained.  

Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability.  38 C.F.R. § 3.159(c)(4).  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court noted that the third prong of 38 C.F.R. 
§ 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  Id. at 83.

With respect to the Veteran's claim for service connection for a pituitary gland disorder, the Board notes that the Veteran has not been provided with a VA medical examination and/or opinion; however, the Board finds that such is not necessary in the instant case.  Specifically, as will be discussed below, there is no competent evidence that the Veteran has a current diagnosis, or persistent or recurrent symptoms, of a pituitary gland disorder.  A mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination.  See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide the claim.  

Additionally, as relevant to the Veteran's application to reopen her claim of entitlement to service connection for a right shoulder disorder, the Board notes that the Veteran has not been provided with a VA examination; however, the VCAA and its implementing regulations include clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who attempts to reopen a previously denied claim.  See 38 C.F.R. 
§ 3.159(c)(1),(2) and (3).  Such assistance includes obtaining service records, records in the custody of a Federal agency, and private records adequately identified by the claimant, but, prior to reopening a claim, there is no duty to obtain a VA medical examination or opinion.  As the Veteran's claim is not reopened herein, there is no obligation on the part of VA to provide a medical examination or opinion in connection with her appeal. 

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her claims.


Principles of Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may also 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 service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996).

Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143  (1992).  In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim.  However, in Romanowsky v. Shinseki, 26 Vet.App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  

A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only conditions that are recorded in the examination report are considered to be noted.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).

When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's condition was both preexisting and not aggravated by service.  If VA fails to rebut the presumption of soundness, the Veteran's claim is treated as one for service connection.  On the other hand, if a preexisting condition is noted upon entry into service, the Veteran can only bring a claim for aggravation of that condition, not for service connection for the condition itself.  In such case, the Veteran has the burden to show aggravation through evidence of symptomatic manifestations of such condition during service.  If the presumption of aggravation arises, the burden shifts to VA to establish a lack of aggravation.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 

A preexisting condition will be considered to have been aggravated where there is an increase in disability during active duty service, unless there is a specific finding that such increase is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. 3.306(a).  The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation and still exists. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).  Clear and unmistakable (obvious and manifest) evidence is required to rebut the presumption of aggravation. 38 C.F.R. 3.306(b). 

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include an endocrinopathy (such as of the pituitary gland), are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309. 

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Background

The Veteran's service treatment records (STRs) include the September 1980 examination for entrance which shows that the Veteran was given an orthopedic consultation regarding her right knee as to her fitness for enlistment.  In an adjunct medical history questionnaire, it was reported that she had had a 1976 right knee ligament injury which had questionably resolved.  The orthopedic consultation noted that she had a history of a right knee injury but she had no present problem.  She could run for one mile, and had no effusion, no pain and no giving way.  There was 1+ laxity of the lateral collateral ligament of each knee, 1+ laxity of the anterior cruciate ligament of the right knee but the posterior cruciate and medial collateral ligaments were satisfactory.  The finding was that the Veteran was fit for enlistment.  

An undated STR shows that the Veteran complained of having pain in the top of her left shoulder since lifting weights 24 hours earlier.  It was noted that she had had a prior knee injury.  Shoulder motion was limited by pain and there was tenderness to palpation.  The impression was a muscle strain.  In July 1983, the Veteran sustained a left knee injury, following which she had ligament surgery.  

In March 1984, the Veteran's left knee gave out while running, causing her to fall.  She was given crutches.  The next morning her left knee was evaluated.  Later in March 1984 she reported that both knees hurt and desired re-evaluation of her knees prior to possible discharge from service.  On evaluation in April 1984, she had mild laxity of the anterior cruciate and both collateral ligaments of both knees which were described as non-significant.  She had bilateral crepitus and positive apprehension tests, bilaterally.  The assessment was left patellar chondromalacia.  

VA outpatient treatment (VAOPT) records show that, in 1986, the Veteran re-injured her left knee at work.  Arthroscopic surgery was recommended and the assessment was a medial meniscus tear of the left knee.  

On VA examination in September 1986, the Veteran complained of bilateral knee joint pain, but there were no abnormal clinical findings of her right knee.  X-rays of both knees were normal.  

A November 1986 rating decision denied service connection for right knee disability, finding that the Veteran had had a right knee injury prior to service which was apparently reinjured, but not aggravated beyond its normal progression during service.  

During VA hospitalization in December 1986, the Veteran had a partial medial meniscectomy.  X-rays of both knees during VA examination in July 1987 found moderately advanced degenerative joint disease (DJD) of the medial aspects of both knee joint spaces and some mild varus deformity. 

VAOPT records show that, in October 1988, the Veteran complained of pain in both knees.  In April 1990, she reported that he left knee turned outwards and sometimes she fell.  X-rays in June 1990 revealed moderate joint line narrowing with small spurs of each knee.  The impression was patellofemoral joint disease.  In February 1993, she complained of pain in both knees.  In November 1993 it was reported that she had had "buccal/shoulder dyskinesia" in the past.  

A discharge summary of VA hospitalization in November 1993 and December 1993 reflects that the Veteran had a history of buccal and shoulder dyskinesia secondary to neuroleptics.  

In October 1996 Dr. R. T. reported that the Veteran stated she had injured her "right" knee during service in the early 1980s, sustaining a bucket handle menisceal tear and she had continued to have problems with it.  

In May 2002 the Veteran claimed service connection for disability of each shoulder, and applied to reopen the claim for service connection for right knee disability, stating that these were due to a jeep accident during service in the summer of 1983.  

An August 2002 rating decision denied service connection for disability of each shoulder and reopening of service connection for a right knee disorder.  It was found that the Veteran had an acute in-service left shoulder sprain which resolved and there was no medical evidence linking any current shoulder disability, right or left, to military service; and, also, there was no new and material evidence to reopen the claim for service connection for a right knee disorder.   

Later in September 2002 the Veteran applied to reopen her claims for service connection for disability of each shoulder and service connection for right knee disability, which she claimed was due to arthritis from her service-connected left knee disability.  

During private psychiatric hospitalization in January 2000 a thyroid profile was unremarkable.  However, the discharge diagnoses from private hospitalization in February 2002 included hypothyroidism.  

The Veteran was notified in April 2003 of a rating decision that month which denied reopening of the claim for service connection for disability of the right knee because the additional evidence did not bear on service incurrence or aggravation or whether any right knee disability was secondary to the service-connected left knee disability.  It was found that new and material evidence had been submitted to reopen claims for service connection for disability of each shoulder, but, while evidence showed treatment for each shoulder, there was no medical evidence of continuity of treatment of the left shoulder and no medical evidence that right shoulder disability was related to service.  As will be discussed further herein, such decision became final.   

VAOPTs show that X-rays in July 2003 revealed a calcific density in the suprapatellar region of the right knee which might represent a calcified loose body within the suprapatellar bursa or an area of dystrophic calcification within the right quadriceps tendon.  On VA psychiatric examination in August 2003 the Veteran complained of shoulder and left knee pain as well as thyroid problems.  

Received in October 2007 was a June 2003 report of Dr. R. T. that indicated that, about 1 1/2 years ago, the Veteran started having right shoulder pain.  She complained of pain around the cervical spine and right scapula which radiated down into her arm.  Over the last year she had had a knot on her right shoulder.  X-rays a few weeks earlier indicated some degenerative changes in the acromioclavicular (AC) joint.  On examination, she had a very large lipomatous mass over the anterior portion of the right shoulder.  The impressions were chronic neck and arm pain of uncertain etiology and a lipoma of the right shoulder.  Also in that month, it was noted that a VA MRI one year earlier alluded to some early impingement problems.  Given that her symptoms went from her cervical spine and scapula down the arm with significant loss of strength and tingling in her hands, it was not felt that her symptoms exactly correlated with MRI findings.  A February 2007 progress note revealed that her right knee was now more painful than the left knee.  X-rays revealed bone on bone contact in each knee.  The impressions included severe degenerative arthritis of both knees, more symptomatic in the right, and status post multiple arthroscopic procedures of the left knee.  

In October 2007 the Veteran applied to reopen the claim for service connection for right knee disability and claimed an increased rating for the service-connected left knee disability.  On VA examination in November 2007 the diagnoses included chronic tendinitis of the right patella quadriceps tendon.  In December 2007 the Veteran applied to reopen the claims for service connection for disability of each shoulder and claimed service connection for a "pituitary gland/hormone imbalance."  

Private left shoulder X-rays in June 2008, taken after the Veteran had had a fall, revealed no fracture, dislocation or other bony abnormality other than AC joint arthrosis.  

Also received were records underling the Veteran's award of SSA disability benefits.  Many of these are duplicates of records contained in the Veteran's claims files, but also included is a report of right knee X-rays in February 1993 which revealed mild degenerative arthritic changes.  March 2002 right shoulder X-rays revealed hypertrophic changes of the AC joint with an osteophyte off the inferior aspect of the distal clavicle which might result in rotator cuff impingement.  An April 2002 right shoulder MRI revealed hypertrophic changes at the AC joint resulting in some extrinsic compression upon the superior surface of the supraspinatus tendon and muscle; small bone spurs of the right clavicle and acromion process further added to the compression on the supraspinatus tendon and muscle.  Also, severe tendinosis was seen in most of the supraspinatus tendon.  In May 2002 the impression was right shoulder AC degenerative joint disease.  

SSA records include records of the Greenville Hospital system of the Veteran's hospitalization in June 1999 and contain a notation that, in light of her olfactory hallucinations, there was a question of whether she had pituitary or some tumor involving the sella turica.  However, those records also show that she had auditory hallucinations.  She was hospitalized later that month at the same private medical facility, again for psychiatric purposes, but on neither occasion was there a diagnosis of any endocrinopathy.   

VAOPTs show that an MRI of the Veteran's brain in June 2008 revealed that the pituitary gland was at the upper limits of normal in size and there were no findings to suggest pituitary microadenoma, consistent with a brain scan of August 2000 which found the pituitary was of similar size and without evidence of a discrete pituitary mass.  

A June 2008 MRI of both knees revealed severe DJD, greater on the right, with absence of much of the medial meniscus of each knee, consistent with an extensive tear, and changes at both lateral menisci with no evidence of meniscal tear, there was also a chronic full thickness tear of the ACL of each knee and a Baker's cyst in each knee.  In June 2008, the Veteran reported that she had been unable to lift her arms above her head for the last 5 days and now had a "popping" of the shoulders for the last 2 years, worse on the right.  She had no recent injury but reportedly had glass in the right arm from a vehicular accident in 1984.  In July 2008, the assessments included left shoulder subacromial bursitis, and tendonitis of the long head of the biceps of the left shoulder.  Also, in July 2008 she reported that she had fallen about 3 weeks ago and since then had problems with left shoulder pain.  In September 2008 she reported that she was having difficulty with her balance and ambulation due to bilateral knee pain and weakness and that she had dislocated her left shoulder in a fall months earlier.  However, in October 2008 it was noted that her gait and movement were satisfactory without a walker or crutches.  

VAOPTs show that October 2008 X-rays of both knees revealed moderately severe degenerative changes in all compartments, similar to X-rays in 2007.  Left shoulder X-rays in December 2008 revealed no evidence of recent fracture or dislocation but there were minor AC joint degenerative changes.  

On VA examination in November 2008, the Veteran reported that the onset of her knee problems was injuries in a vehicular accident during service.  She denied having problems prior to service.   

On VA examination in January 2009, the Veteran's claim file was reviewed.  She reported that her right foot was caught in the gas pedal of a Jeep in a vehicular accident during service in 1983, twisting the right knee.  She had not had pain after the accident and had not sought treatment.  She reported that she had torn (an unspecified) right knee ligament running track in high school prior to military service which she believed was a menisceal tear and she had had right knee pain after this pre-service injury but had not sought treatment.  She had had knee pain, off and on, since service discharge but had not sought treatment in the first postservice year.  She had current right knee complaints but had not had right knee surgery.  After a physical examination the diagnosis was right knee DJD.  It was stated that the Veteran believed that she had had a pre-service right knee ligament injury but the examiner found no record of a vehicular accident during service and, also, the Veteran admitted that there was no aggravation of the knee pain after that accident.  Thus, she had not sought treatment at that time.  Episodes of in-service bilateral knee pain were treated conservatively.  The examiner found no evidence in the STRs to support a claim of in-service aggravation of a chronic right knee condition.  It was opined that the initial injury predated military service and that her current right knee DJD was likely related to the pre-service injury.  The examiner believed it was less likely as not that the current right knee DJD was permanently aggravated by military service beyond its natural progression.  

On the same VA examination in January 2009 of the Veteran's left shoulder, she reported that in 2008, about 24 years after service, she fell due to pain and instability of her left knee and injured her left shoulder, and was diagnosed in the emergency room with a torn rotator cuff of the left shoulder.  She had no shoulder problems prior to military service and no injury since 2008.  She now complained of chronic left shoulder pain and had had physical therapy.  After a physical examination it was noted that December 2008 X-rays showed no evidence of fracture or dislocation, but only minor degenerative AC changes.  The diagnosis was mild AC DJD.  The examiner opined that there was no way to substantiate the claim that the Veteran fell in 2008 due to her left knee disability.  The examiner was unable to locate the STR which noted that the Veteran had an in-service complaint of left shoulder pain which was assessed as a muscle strain.  The examiner opined that the left shoulder AC DJD was a chronic condition for which there was no evidence of instigation or aggravation by military service and, so, it was believed that it was less likely as not that the current AC DJD was caused or aggravated by the Veteran's military service.  

VAOPT records show that a March 2009 left shoulder MRI found extensive hypertrophic and degenerative changes of the left AC joint impinging into the supraspinatus muscle tendon region, degenerative osteoarthrosis with irregularity of the left humeral head and chondral edema, full thickness tear of the supraspinatus tendon with mild retraction, a tear of the distal infraspinatus tendon, a degenerated inferior labrum, and atrophy of the muscles forming the rotator cuff, predominantly the supraspinatus.  

On VA psychiatric examination in May 2010 the Veteran reported having had a right knee replacement.  

Service Connection Claim  

In this case, persuasive evidence simply does not establish that the Veteran currently has any disability of the pituitary gland.  Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability.  See 38 U.S.C.A. § 1110.  Where, as here, there is no competent evidence that there is not now, or at any time since the claim was filed, a current disability for which service connection is sought, there can be no valid claim.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1330-33 (Fed. Cir. 1997); McClain, supra; Romanowsky, supra.  

At a time when the Veteran was having both auditory and olfactory hallucinations, it was suspected that she might have pathology of the pituitary gland.  However, subsequently, an MRI of her brain found no abnormality of her pituitary gland.  Specifically, a June 2008 MRI revealed that the pituitary gland was at the upper limits of normal in size and there were no findings to suggest pituitary microadenoma, consistent with a brain scan of August 2000 which found the pituitary was of similar size and without evidence of a discrete pituitary mass.  Therefore, there is no medical evidence of pathology or disability of the pituitary gland at any time before or during the current appeal period.  

Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  None of these three circumstances are shown here.  Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  The Veteran is not competent to render a diagnosis that she has or at any time had pathology or disability of the pituitary gland because she lacks the training, education and experience to do so.  Specifically, diagnosing such disorder requires specialized medical testing, to include MRIs, and the interpretation of such results.  Thus, there is no competent evidence that the Veteran now has or has ever had disability or any pathology of the pituitary gland.  

In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no persuasive evidence supports the required element of current disability, that doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 

Applications to Reopen Claims for Service Connection

In April 2003, the Veteran was advised of the decision denying reopening of the claims for service connection for disabilities of each shoulder and the right knee, and of her appellate rights.  However, no further communication regarding these claims for until October and December 2007, when VA received her applications to reopen such claims.  Therefore, the April 2003 rating decision is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2012)]. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  However, in the instant case, such regulation is inapplicable as no new and material evidence pertaining to the Veteran's claim for service connection for disabilities of the shoulders or right knee was received prior to the expiration of the appeal period stemming from the April 2003 rating decision.  In this regard, the only evidence received within one year of the April 2003 rating decision consists of an August 2003 VA psychiatric examination, at  which time, the Veteran complained of shoulder and left knee pain as well as thyroid problems; however, such statements are duplicative of the evidence considered in connection with the April 2003 rating decision.  Therefore, 38 C.F.R. § 3.156(b) is inapplicable.  See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). 

Rating actions 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 an 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(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). 

Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

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 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 determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  The Court has 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.  Id.  

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

The May 2008 rating decision which is appealed denied reopening of the three service connection claims but the May 2009 SOC found that new and material evidence had been submitted to reopen the claims for service connection for disabilities of the left shoulder and the right knee but these claims were then denied de novo.  However, the Board has a legal duty to consider whether new and material evidence has been submitted, regardless of the determination by the RO.  Barnett v. Brown, 8 Vet. App. 1 (1995).  If new and material evidence is not submitted to reopen a previously denied claim, the Board is without jurisdiction to adjudicate the merits.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  

Left Shoulder Disorder

The evidence received since the April 2003 rating decision, when viewed in light of all the evidence establishes a reasonable possibility of substantiating a claim for service connection for left shoulder disability.  Here, it is only after the 2003 rating decision that the Veteran has reported, as indicated in both private and VA medical records, that she sustained a fall in 2008 due to instability or weakness of the service-connected left knee, causing disability of the left shoulder.  

Although the recent January 2009 VA examiner was essentially unable to opine whether the left knee disability caused such a fall, it must be noted that the March 2009 left shoulder MRI revealed tears of the supraspinatus and infraspinatus tendons.  While there is also evidence that there are degenerative changes within the left shoulder, there is sufficient evidence, based on the MRI, to indicate the existence of left shoulder pathology which may possibly be due to trauma to warrant reopening.  Thus, because the Board may not weigh the evidence in the reopening context, there is sufficiently favorable evidence to establish a reasonable possibility of substantiating the claim.  As such, the claim for service connection for left shoulder disability is reopened.  

Right Shoulder Disorder

The evidence received since the April 2003 rating decision, when viewed in light of all the evidence does not establish a reasonable possibility of substantiating a claim for service connection for right shoulder disability.  Here, a June 2003 report of a private physician indicates that the Veteran had only recently developed a lipoma of the right shoulder area.  Also, it shows that she pain which radiated down to the right arm or possibly had some impingement within the right shoulder.  However, these symptoms and findings were all of postservice origin.  Other additional clinical records indicate that she has developed arthritis and tendonitis within the right shoulder years after service.  Her statement that she has shards of glass retained in her right arm from an in-service vehicular accident have not been radiologically confirmed.  For these reasons, the additional evidence, even when viewed in light of the old evidence, does not show that any current pathology or disability of the right shoulder is related in any manner to the Veteran's military service decades earlier or to a service-connected disability, or even the claimed disabilities of the left shoulder and right knee.  

As such, the old and the new evidence is insufficient to establish a reasonable possibility of substantiating the claim.  As such, the application to reopen the claim for service connection for right shoulder disability is denied.  

Right Knee Disorder

The evidence received since the April 2003 rating decision, when viewed in light of all the evidence establishes a reasonable possibility of substantiating a claim for service connection for right knee disability.  In this regard, the recent VA examination in January 2009 found that the Veteran had a pre-existing right knee disability which did not undergo an increase beyond any natural progression during active service.  This was the basis for the original denial of service connection in 1986.  However, since the 1986 denial, an August 1987 rating decision granted service connection for disability of the left knee.  Equally important, there has been no adjudication of whether the service-connected disability of the left knee has either caused or aggravated any right knee disability.  This is particularly significant because there is evidence that disability of each knee has progressed over the years.  

Thus, because the Board may not weigh the evidence in the reopening context, there is sufficiently favorable evidence to establish a reasonable possibility of substantiating the claim.  As such, the claim for service connection for right knee disability is reopened.   


ORDER

Service connection for a pituitary gland disorder is denied.  

New and material evidence having been received, the claim of entitlement to service connection for a left shoulder disorder is reopened. 

New and material evidence not having been received, the application to reopen a claim for service connection for a right shoulder disorder is denied.  

New and material evidence having been received, the claim of entitlement to service connection for a right knee disorder is reopened. 


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's left knee increased rating claim and claims for service connection for disorders of the right knee and left shoulder so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

As an initial matter, with respect to the Veteran's claims for service connection for left shoulder and right knee disorders, the AOJ should ensure that she is provided proper VCAA notice with respect to the secondary aspects of such claims.  The Board further finds that a remand is necessary with respect to such issues to obtain a new VA examination so as to determine the nature and etiology of such disorders.

In this regard, the January 2009 examiner opined that the Veteran's current left shoulder disability was not incurred or aggravated during service, but also stated that there was no way to substantiate whether the Veteran's fall in 2008 from her left knee disability, caused or aggravated any left shoulder disability.  The examiner noted that the Veteran had been treated at an emergency room.  Apparently, this was at a private medical facility.  Those records are not on file but could impact on whether her left knee disability was responsible for a fall that caused a left shoulder injury.  As such, those records should be obtained and, thereafter, the Veteran should be afforded an examination to address this matter. 

Also, although the January 2009 VA examiner opined that the Veteran had a pre-existing right knee disability that was not aggravated beyond natural progression during service, there is no medical opinion on file addressing whether the service-connected left knee disability has caused or aggravated her current right knee disability.  Moreover, it does not appear that the examiner utilized the correct legal standard for determining whether such disorder pre-existed the Veteran's military service.  In this regard, the Veteran's September 1980 entrance examination revealed no clinical abnormality with respect to her lower extremities.  Therefore, despite her concurrent report that she had a right knee ligament injury in 1976, she is presumed sound upon entry to service.  Such presumption may only be rebutted by clear and  unmistakable evidence that the disorder pre-existed service and was not aggravated during service.  Therefore, a new examination is necessary.   

Regarding the Veteran's claim for an increased rating for her left knee disability, the Board notes that an October 2013 rating decision recharacterized the Veteran's service-connected left knee disability from chondromalacia patella of the left knee to degenerative joint disease of the left knee status post left total knee replacement with scarring and granted a temporary 100 percent rating, effective March 4, 2013, pursuant to 38 C.F.R. § 4.30, and a 30 percent rating, effective May 1, 2014.  However, it is not clear whether all relevant evidence considered in connection with such rating decision is of record.  In this regard, while the October 2013 VA examination report is contained in Virtual VA, it does not appear that, for example, records from the Columbia, South Carolina, VA Medical Center dated from February 2012 through March 2012 are of record.  Therefore, on remand, the AOJ should associate with the record all relevant evidence considered in connection with the October 2013 rating decision, review the record, and conduct any additionally indicated development.

Additionally, while on remand, the Veteran should be given an opportunity to identify or submit any additional treatment records referable to disabilities of each knee and the left shoulder, to include the emergency room where she was treated after her fall in 2008; the orthopedist in Greenville, South Carolina (where she had indicated that she received treatment for both of her knees); and Greer Memorial Hospital (where her left knee replacement was done).  Thereafter, all identified records should be obtained for consideration in her appeal. 

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate her claims of entitlement to service connection for left shoulder and right knee disorders as secondary to her service-connected left knee disability.  

2.  The Veteran should be given an opportunity to identify or submit any additional VA or non-VA treatment records referable to disabilities of each knee and the left shoulder, to include the emergency room where she was treated after her fall in 2008, the orthopedist in Greenville, South Carolina, Greer Memorial Hospital.  After obtaining any necessary authorization forms, obtain all identified records.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3.  After obtaining all outstanding treatment records, the Veteran should be afforded a VA orthopedic examination to determine the nature and etiology of any currently diagnosed right knee disability.  The claims folders must be made available to and reviewed so that pertinent aspects of the Veteran's medical history may be reviewed.  

Following a review of the record, and any necessary testing, the examiner should address the following inquiries:

(A)  Identify all current diagnoses of the right knee.

(B)   For each current disorder of the right knee, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the disorder pre-existed service.  

(i)  If there is clear and unmistakable evidence that the disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder did not undergo an increase in the underlying pathology during service.  

If there was an increase in the severity of the Veteran's disorder, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease.  

(ii)  If there is no clear and unmistakable evidence that any current disorder pre-existed service, then the examiner is asked whether it is at least as likely as not that the disorder is directly related to service.  

(C)  The examiner should also offer an opinion as to whether it is at least as likely as not that the Veteran's right knee disability was caused OR aggravated by her service-connected left knee disability.  

In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the effect of her service-connected left knee disability upon his right knee, e.g., the impact as to ambulation and weight-bearing.  The rationale for any opinion offered should be provided. 
4.  After obtaining all outstanding treatment records, the Veteran should be afforded a VA orthopedic examination to determine the nature and etiology of any currently diagnosed left shoulder disability.  The claims folders must be made available to and reviewed so that pertinent aspects of the Veteran's medical history may be reviewed.  

Following a review of the record, and any necessary testing, the examiner should address the following inquiries:

(A)  Identify all current diagnoses of the left shoulder.

(B) The examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's left shoulder disability was caused OR aggravated by her service-connected left knee disability, to include by a fall which was due to her service-connected left knee disability.  

In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the effect of her service-connected left knee disability; and the VAOPT records that she sometimes fell due to her left knee and that she was at risk for falling due to her left knee.  The rationale for any opinion offered should be provided. 
5.  With respect to the Veteran's claim for an increased rating for her left knee disability, the AOJ should associate with the record all relevant evidence considered in connection with the October 2013 rating decision, review the record, and conduct any additionally indicated development.   
6.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claims remain denied, the Veteran and her representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.
Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs