Citation Nr: 1340892 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 10-21 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for chills and night sweats. 2. Entitlement to service connection for numbness of the arms and hands. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran and Mr. W. ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The appeal has been advanced on the Board's docket. The Veteran, who is the appellant, served on active duty from July 1990 to June 1993. The issues or claims are before the Board of Veterans' Appeals (Board) on appeal of rating decisions in May 2008 and in February 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is the Veteran's file. In March 2013, the Board remanded the claims for further development. As the development has been completed, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). The claim of service connection for a psychiatric disorder other than posttraumatic stress has been raised by the record, and the claim is referred to the RO for appropriate action. The claim of service connection for a bilateral knee disability is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. In a rating decision dated in June 1994, the RO denied the claim of service connection for chills and night sweats; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision or submit new and material evidence within the one year appeal period. 2. The additional evidence presented since the rating decision dated in June 1994 by the RO, denying service connection for chills and night sweats, is either redundant or cumulative of evidence previously considered or does not relate to the unestablished fact necessary to substantiate the claim. 3. Numbness of the arms and hands was not affirmatively shown to have had onset during service, and numbness of the arms and hands is otherwise unrelated to an injury, disease, or event in service. 4. On the claim of service connection for posttraumatic stress disorder, the Veteran was scheduled for a VA examination in August 2013. 5. The Veteran failed to report for the VA examination in August 2013 and the Veteran has not shown good cause for not reporting. CONCLUSIONS OF LAW 1. The rating decision in June 1994 by the RO, denying service connection for chills and night sweats, became 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 presented to reopen the claim of service connection for chills and night sweats. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for numbness of the arms and hands have not been met. 38 U.S.C.A. §§1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). 4. Service connection for posttraumatic stress disorder is denied on the basis of the Veteran's failure to report for a VA medical examination. 38 C.F.R. § 3.655(a), (b) (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim to reopen a previously denied claim of service connection, VCAA notice requires information regarding the evidence and information that is necessary to reopen a claim, the definition of new and material evidence, and of what evidence and information is necessary to establish entitlement to the underlying claim for the benefit sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim to reopen service connection for chills and sweats and the reopened claims of service connection for numbness of the arms and hands, the RO provided pre-adjudication VCAA notice by letter, dated in January 2008. On the claim of service connection for posttraumatic stress disorder, the RO provided pre-adjudication VCAA notice by letter, dated in August 2008. The VCAA notice included the type of evidence necessary to reopen a claim, namely, new and material evidence, and the basis for the denial of the previous claim. The VCAA notice included the type of evidence needed to substantiate a claim of service connection. The Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and for the timing of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice). See Kent v. Nicholson, 20 Vet. App. 1 (2006) (the elements of a new and material evidence claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, private medical records, and records of the Social Security Administration. On the claim to reopen service connection for chills and night sweats, under the duty to assist, a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). As the claim is not reopened, a VA medical examination or medical opinion is not warranted. On the claim of service connection for numbness of the arms and hands, a VA examination or opinion is necessary only if the evidence of record (a) contains competent evidence of a current disability, or persistent or recurrent symptoms of disability; and (b) establishes that the Veteran suffered an event, injury, or disease in service; and (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service, and (d) does not contain sufficient medical evidence for VA to make a decision on a claim. 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet the evidentiary thresholds. In March 2013, the Board remanded the claim of service connection for posttraumatic stress disorder to afford the Veteran a VA examination. The Veteran was scheduled for a VA psychiatric examination in August 2013, but failed to report for the examination without providing good cause for his failure to attend and the claim will be decided in accordance with 38 C.F.R. § 3.655 as explained in the analysis below. As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen Service Connection for Chills and Night Sweats Legal Principles The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim. 38 U.S.C.A. § 5108. Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). As the current claim to reopen was received in 2007, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies. New evidence means existing 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Analysis Procedural History and Evidence Previously Considered In a rating decision in June 1994, the RO denied service connection for chills and night sweats on the basis that a disability with chills and night sweats was not shown in service. After the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision or submit new and material evidence within the one year appeal period. The rating decision became final by operation of law. 38 C.F.R. § 3.104. The evidence of record at the time of the rating decision in June 1994 consisted of the service treatment records and the Veteran's original claim, in which he asserted that he had chill and night sweats in July 1991. The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a disability with symptoms of chills and night sweats. Current Claim to Reopen As the rating decision by the RO in June 1994 became final based on the evidence then of record, new and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108. The additional evidence since the rating decision is June 1994 consists of VA records and the Veteran's statements and testimony. VA records show that in September 2010 the Veteran complained of chills and fever in treatment for a possible spider bite and an ulcerated lesion. The evidence does not relate to an unestablished fact necessary to substantiate the claim, namely, that the Veteran has a current disability with chills and night sweats related to service. For this reason, the evidence is not new and material evidence under 38 C.F.R. § 3.156(a). In statements and in testimony, the Veteran stated that he began to experience chills and night sweats in service. The statements and testimony are cumulative of the Veteran's previous statement in his original claim for service connection in June 1993, in which the stated that he had chills and night swears in July 1991. Cumulative evidence does not meet the regulatory definition of new and material evidence under 38 C.F.R. § 3.156(a). As the additional evidence is not new and material, the claim is not reopened and the benefit-of-the-doubt standard of proof does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Claim of Service Connection for Numbness of the Arms and Hands Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation, service connection, if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1110 (wartime service) and 38 U.S.C.A. § 1131 (peacetime). Generally, to establish entitlement to compensation, a Veteran must show: (1) a present disability; (2) an in-service incurrence of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred during service, the so called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In this case, different legal theories operate in conjunction with 38 U.S.C.A. § 1110 38 U.S.C.A. § 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the credibility and weight of admissible evidence, which are also factual determinations. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records contain no complaint, finding, history, treatment, or diagnosis of a disability of the arms and hands. After service, VA records in May 2009 document carpal tunnel syndrome. Private medical records in September 2009 show that the Veteran complained of weakness and numbness in the right hand which was associated with possible right carpal tunnel syndrome. A nerve conduction study demonstrated prolongation of terminal latency in the right ulnar nerve. In November 2011, the Veteran stated had the numbness in his arms and hands began while he was on active duty. Analysis The Veteran asserts that numbness in the arms and hands began in service. The Veteran as a lay person is competent to describe symptoms of numbness, which are within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). On the basis of the service treatment records alone, numbness of the arms and hands was not affirmatively shown to have been present in service, and service connection under 38 U.S.C.A. §§ 1110 and § 1131 and 38 C.F.R. § 3.303(a) is not warranted. Also numbness is not a chronic disease listed in 38 C.F.R. § 3.309, and chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply and service connection under 38 U.S.C.A. §§ 1110 and 1131 as implemented by 38 C.F.R. § 3.303(b) (chronicity and continuity of symptomatology) is not warranted. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (presumption of service connection for a chronic disease manifested during service applies only to enumerated chronic diseases under 38 C.F.R. § 3.309(a) and continuity of symptomatology avenue to service connection is available only for enumerated chronic diseases, 38 C.F.R. § 3.309(a)). As for service connection based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), while the Veteran is competent to describe symptoms of numbness, the Veteran's statements and testimony relate to what happened in service, competent and credible evidence is still required to prove a present disability and a causal relationship between the present disability and an injury, disease, or event in service, the nexus requirement. Shedden, at 1167. After service, numbness in the right hand associated with carpal tunnel syndrome was first documented in 2009, 16 years after service. The Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau at 1377. As a lay person, the Veteran is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A simple medical condition is one capable of lay observation. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). Also a disability with numbness of the arms and hands is not the type of condition under case law that has been found to be capable of lay observation. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfeet are capable of lay observation); see McCartt v. West, 12 Vet. App. 164, 167 (1999) (a skin condition is capable of lay observation; see Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus is capable of lay observation); see Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); and see Jandreau, at 1377, n. 4 (a lay witness is capable of diagnosing a simple medical condition, for example a broken leg, but not, for example, a form of cancer). Applying the guidance of the current case law, numbness of the arms and hands is an internal disease process, analogous to a disease such as rheumatic fever, rather than to flatfeet, a skin condition, tinnitus, varicose veins, a dislocated shoulder, or a broken leg. For this reason, the claimed disability is not the type of condition under case law that has been found to be capable of lay observation. As the claimed disability is not capable of lay observation under Jandreau and by case law, the claimed disability is not a simple medical condition, capable of lay observation. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to identify a disability with numbness of the arms and hands. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). The Board finds that the Veteran's statements and testimony are not competent evidence on the question of the presence or diagnosis of a disability of the arms and hands in service or before 2009, and the Veteran's statements and testimony are excluded, that is, not to be considered as evidence favorable to the claim. And while the Veteran as lay person is competent to report a contemporaneous medical diagnosis, there is no medical diagnosis before 2009. As for evidence of a nexus between the present numbness of the arms and hands and service to the extent the Veteran himself makes the association, the association is an inference based on facts and it is an opinion rather than a statement of fact. As previously explained, the claimed disability is not a simple medical condition under Jandreau or by case law and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the claimed disability and the in-service symptoms he described. The Veteran's lay opinion is therefore not competent evidence of a causal relationship or nexus between the in-service symptoms he describes and any current symptoms of numbness of the arms and hands. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim. As the Veteran's lay evidence is not competent evidence on material issues of fact, namely, the identification of a disability or of a nexus to service, and as there is no medical evidence favorable to the claim, and as it is the Veteran's general evidentiary burden to establish all elements of the claim, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Service Connection for Posttraumatic Stress Disorder Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with any other original claim, the claim shall be denied. An original claim is defined as an initial application on a form prescribed by the Secretary. 38 C.F.R. § 3.160. The claim of service connection for posttraumatic stress disorder is not the original claim for compensation under 38 C.F.R. § 3.160. Rather, the Veteran's initial formal application on a form prescribed by the Secretary, VA Form 21-256, was received by VA in June 1993. In 2007, the Veteran filed the current claim for service connection. In March 2013, Board remanded the claim to schedule the Veteran for VA examination. In August 2013, the Veteran failed to report for the scheduled examination and has not provided good cause for not appearing. There is no suggestion that the Veteran did not receive notification of the examination and the Veteran has not asserted that he did not receive notification of the examination. The Board concludes that the Veteran has not shown good cause for his failure to report for the examination. Whereas here the Veteran filed a claim of service connection, that is not the original compensation claim, i.e., an initial claim filed on the form prescribed by VA, the claim is not the original compensation claim and cannot be decided based on the evidence of record. Rather, the claim is in the category of "any other original claim. The "original compensation claim" is a term of art and does not mean a new claim of service connection for a different disability. For these reasons, the Board finds that the Veteran failed to appear for the scheduled VA examination without good cause, and that the claim is not the original compensation claim, and must therefore be denied as a matter of law pursuant to 38 C.F.R. § 3.655(b). ORDER As new and material evidence has not been presented, the claim of service connection for a chills and night sweats is not reopened and the appeal is denied. Service connection for a disability of the arms and hands is denied. Service connection for posttraumatic stress disorder is denied. REMAND On the reopened claim of service connection for a bilateral knee disability, the Veteran is service-connected for a right ankle disability and for a left ankle disability. In December 2004, private records show that the Veteran was in a vehicle accident and he had developed left knee pain. The impression was left knee effusion. In July 2007, VA records show that the Veteran complained of pain and swelling in each knee for about three years. The impression was bilateral knee arthralgia. In November 2007, history included old trauma to the ankles and knees. The impression was chronic knee pain probably secondary to old trauma. In November 2011, the Veteran stated that in service he complained of a knee problem after road marches. In March 2013, a MRI by VA showed a probable tear of the meniscus and right knee fluid with arthritis. The Veteran stated that his knee problems began after his ankle injuries. As the evidence of record is insufficient to decide the claim under the applicable theories of service connection, including secondary service connection the case is REMANDED for the following action: 1. Ensure compliance with the duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) on the claim of secondary service connection for a bilateral knee disability. 2. Afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), or less likely than not (probability less than 50 percent), that the current bilateral knee disability is caused by or aggravated by the service-connected disabilities of the ankles. The term "aggravation" means a permanent increase in severity, that is, an irreversible worsening of the bilateral knee disability as a result of the service-connected disabilities of the ankles beyond the natural clinical course of the bilateral knee disability as contrasted to a temporary worsening of symptoms. If, after a review of the record, an opinion cannot be provided without resort to speculation, please clarify whether causation or aggravation cannot be determined because there are several potential etiologies, please identify the other potential etiologies, such as intercurrent injury or other physical health problems, namely, residuals of back injury or obesity and that an opinion on causation or aggravation is beyond what may be reasonably concluded based on the evidence of record and current medical knowledge. The Veteran's file must be made available to the VA examiner for review. 3. After the above development is completed, adjudicate the reopened claim of service connection for a bilateral knee disability, including secondary service connection. If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs