Citation Nr: 1339267 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-41 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disorder, diagnosed as degenerative joint disease (DJD). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a left knee disorder, diagnosed as DJD. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from September 14, 1949, to May 15, 1950, and August 14, 1951, to August 3, 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied service connection for lumbar spine and left knee disorders on the basis that new and material evidence had not been received. The RO in Des Moines, Iowa, currently has jurisdiction of the claims file. At the time of his October 2010 Substantive Appeal, the Veteran elected to be heard by the Board at the RO. However, by a statement received later in October 2010, the Veteran withdrew his hearing request. The Veteran's request for a Board hearing is thus withdrawn. See 38 C.F.R. § 20.703 (2013). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a February 1954 rating decision, the RO denied the claims for service connection for lumbar spine and left knee disorders; the Veteran did not appeal. 2. The evidence received since the February 1954 RO decision is not cumulative or redundant of evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for lumbar spine and left knee disorders, each diagnosed as DJD. 3. Resolving all doubt in favor of the Veteran, he has experienced recurrent symptoms of lumbar spine and left knee disorders, each diagnosed as DJD, chronic diseases, since the time of separation of service to the present. CONCLUSIONS OF LAW 1. The February 1954 RO decision is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.160(d), 20.302 (2013). 2. New and material evidence has been received to reopen the claims for service connection for lumbar spine and left knee disorders, each diagnosed as DJD. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.159, 20.201 (2013). 3. Lumbar spine and left knee disorders, each diagnosed as DJD, were incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1133 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist the Appellant In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. New and Material Evidence In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this case, the Veteran's initial claims for service connection for lumbar spine and left knee disorders were denied in a February 1954 RO rating decision. The claims were initially denied because the RO found that there was no evidence of such disabilities found on last examination. Within one year of the RO's February 1954 rating decision, the Veteran did not express disagreement with the decision, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b); 20.201; see also Buie, 24 Vet. App. 242, at 251-52. As such, the February 1954 RO rating decision became final. The evidence of record at the time of the February 1954 RO rating decision included the Veteran's service treatment records and report of the January 1954 VA examination, as well as the statements of the Veteran and his wife and brother. Evidence added to the record since that time includes the Veteran's subsequent claims for service connection for lumbar spine and left knee disorders, dated in May 2004, April 2009, and August 2009, VA and private treatment records, and report of the August 2011 VA examination. Significantly, the private treatment records and report of the recent VA examination include a diagnosis for the lumbar spine and left knee to include DJD. Thus, as the basis for the RO's original denial of service connection was that there was no evidence of current disabilities, and newly received evidence includes record of DJD of the lumbar spine and left knee, among other diagnoses, the new evidence is material. As the Board has determined that new and material evidence has been received as to the Veteran's claims, it is necessary to consider whether the Veteran would be prejudiced by the Board proceeding to a decision on the merits. In this case, as discussed above, in light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection can be demonstrated for a disease diagnosed after service 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). In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Symptoms, and not treatment, are the essence of any evidence of continuity of symptomatology The United States Court of Appeals for the Federal Circuit has recently held that for purposes of 3.303(b), where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Arthritis is listed as a chronic condition under 38 C.F.R. § 3.309(a). Any arthritis may thus be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, arthritis may be presumed to have been incurred in or aggravated by service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1333; 38 C.F.R. §§ 3.307, 3.309. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In a January 1954 statement, the Veteran's wife asserted that his back had bothered him for a long time, and that his left leg also bothered him, with swelling and stiffness. In a January 1954 statement, the Veteran's brother reported that the Veteran had hurt his knee in 1949 during basic training and that such continued to bother him after his 1950 release from service. He reported that he recalled that the Veteran was on furlough in October 1952 and could hardly bend his knee. In an April 2004 statement, the Veteran reported that he had injured his lumbar spine and left knee during service, and that he was still having bad pain, on a daily basis. The Veteran is competent to report his lumbar spine and left knee pain during and since service, and there is no evidence that he is not credible in this regard. His wife and brother are competent to report what they observed of the Veteran's lumbar spine and left knee and there is no evidence that they are not credible. See Layno, 6 Vet. App. 465, at 470. An August 1951 service treatment record indicates that the Veteran was injured on the obstacle course in 1949 and had been having stiffness and pain in the left knee, with worsening one week prior. There was marked limitation of flexion and a line of duty determination. Service treatment records dated in August 1951 indicate that he presented for surgical observation for suspected internal derangement of the left knee. Service treatment records dated later in August 1951 indicate that the Veteran complained of a stiff left leg, with negative results of X-ray examination. He reported history of an old injury and could not flex his leg more than 30 degrees. Hydroarthrosis was noted. Still more service treatment records dated in late August 1951 indicate that the Veteran reported left knee pain. Physical examination revealed marked muscle spasm preventing testing of the ligaments of the knee, with fluid in the joint and marked tenderness and some swelling. He was diagnosed with hydroarthrosis of the left knee, with a notation that possible arthritis must be ruled out. Service treatment records dated in September 1951 indicate that the Veteran presented with recurrent effusion of the left knee, without known orthopedic disease. Reports of Medical Examination dated in September 1950 and August 1951 are silent for any left knee abnormalities. Report of Medical Examination dated in July 1953 is silent for any left knee abnormalities; however, there is a notation of history of hospitalization for the left knee in September 1951. Service treatment records dated in August 1951 indicate that the Veteran reported back pain, without specific injury. Physical examination revealed mild tenderness in the right sacroiliac region, with some rigidity at L2 to L5 on flexion. Service treatment records dated in September 1951 indicate that the Veteran complained of chronic recurrent back pain since 1949. X-ray examination revealed no abnormalities, expect for excessive overlapping of the articular facets of L4-L5 on the left, without arthritis of other pathology visible. Reports of Medical Examination dated in September 1950, August 1951, and July 1953 are silent for any lumbar spine abnormalities. The Veteran underwent VA examination in January 1954 in connection with his original claim for service connection for lumbar spine and left knee disorders, however no current disability was found. Private and VA treatment records dated from 1993 to the present reveal multiple instances of treatment for lumbar spine and left knee complaints. On VA examination in August 2011, the examiner provided recitation of the relevant portions of the Veteran's service treatment records, as discussed above. She also discussed the Veteran's post-service lumbar spine and left knee treatment. The examiner diagnosed the Veteran was DJD of the lumbar spine and left knee. However, she opined that the Veteran's disorders were less likely related to service, on the basis that there were no chronic lumbar spine or left knee disorders shown during service, and no evidence of treatment for compensable lumbar spine or left knee disorders within one year of separation from active service. She also noted that the Veteran's arthritis of the left knee was similar to that of his right knee, and X-ray examination in 1954 revealed a normal lumbar spine. It does not appear that the examiner considered the Veteran's competent and credible report of a history of recurrent lumbar spine and left knee symptoms since separation from service. Instead, it appears that she only sought evidence of compensable lumbar spine and left knee disorders within one year of separation from service. She also did not discuss how the Veteran's in-service X-ray findings of excessive overlapping of the articular facets of L4-L5 on the left, and how the Veteran's numerous complaints of in-service left knee pain and treatment, including hospitalization, was not evidence of chronic lumbar spine or left knee disorders. Her opinion is thus inadequate in the present appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). While the examiner, in the portion of the examination report where results of X-ray examinations were recorded, only noted minimal narrowing of the medial joint compartment of the left knee, and only diagnosed the Veteran with left knee sprain; in the portion of the examination report where nexus opinions were recorded, she opined that the Veteran had DJD of the left knee. The Board notes here that to the extent that the August 2011 VA examination report contains an error, the Veteran was diagnosed with osteoarthritis in March 1999 by a private physician. Thus, sufficient evidence of arthritis of the left knee is of record. After resolving all reasonable doubt in the Veteran's favor, his lumbar spine and left knee disorders, each diagnosed as DJD, had their onset in service. The Veteran has current diagnoses of the same and in-service complaints related to the lumbar spine and left knee. Further, he has demonstrated recurrent symptoms of his lumbar spine and left knee disorders since separation from service, evidenced by his claim filed soon after separation from service, as well as his competent and credible lay statements of record. 38 C.F.R. § 3.303(d). The Board thus finds that the evidence of record sufficiently places the onset of lumbar spine and left knee disorders, each diagnosed as DJD, during active service. Service connection is warranted. The appeal is granted. ORDER Service connection for a lumbar spine disorder, diagnosed as DJD, is granted. Service connection for a left knee disorder, diagnosed as DJD, is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs