Citation Nr: 1530042 Decision Date: 07/14/15 Archive Date: 07/21/15 DOCKET NO. 12-28 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a chronic back condition and if so, whether service connection is warranted. 2. Entitlement to service connection for degenerative joint disease of the knees. 3. Entitlement to service connection for degenerative joint disease of the shoulders. 4. Entitlement to service connection for kidney cancer (renal cell carcinoma) status post right kidney removal, to include as due to contaminated water at Camp Lejeune, North Carolina. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2015. A transcript of those proceedings is of record. In June 2015 the Veteran submitted additional evidence along with a waiver of Agency of Original Jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider such newly received evidence. The issue of entitlement to service connection for lung cancer, to include as due to contaminated water at Camp Lejeune, North Carolina, has been raised by the record at the Veteran's Board hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The May 1972 Board decision that denied the Veteran's appellate claim for service connection for a back condition was not appealed and no new and material evidence was received within the appeal period. 2. Evidence received since May 1972 including the Veteran's hearing testimony and VA treatment records are not duplicative or cumulative of evidence previously received, relates to relevant unestablished facts, and raises a reasonable possibility of substantiating the Veteran's service connection claim. 3. Resolving all doubt in the Veteran's favor, his preexisting back condition was aggravated by an in-service injury. CONCLUSIONS OF LAW 1. The unappealed May 1972 Board decision that denied the Veteran's appeal of a claim for service connection for a back condition is final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. §§ 20.302, 20.1100 (2014). 2. The Veteran has submitted new and material evidence sufficient to reopen his claim for a chronic back condition. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2014). 3. The criteria for service connection for a chronic back condition have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board reopens the Veteran's claim for service connection for a chronic back disability and grants service connection. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. I. New and Material Evidence The Veteran's initial claim for back condition was denied in a June 1969 rating decision and again in a July 1971 rating decision, which was affirmed by a May 1972 Board decision. The Veteran did not appeal the May 1972 Board decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within the appeal period. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the May 1972 Board decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104(b); 38 C.F.R. § 20.1100. A previously denied claim can be reopened if the claimant submits new and material evidence. 38 U.S.C.A. § 5108; 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. Thus, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding reopening. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. Shade, supra. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the May 1972 Board decision, new evidence has been received, including hearing testimony concerning the Veteran's in-service injury and post-service symptomatology and medical records diagnosing degenerative disc disease As this evidence was not previously before agency decisionmakers, relates to an unestablished fact necessary to substantiate the Veteran's claim, is neither duplicative nor cumulative of evidence previously received, and bears a reasonable possibility of substantiating the claim, the Board finds it to be new and material sufficient to warrant reopening the Veteran's claim for a chronic back condition See Smith v. West 12 Vet. App. 312, 314-315 (1999); Shade supra; 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. II. Service Connection The Veteran maintains that he injured his back during training and that he has suffered from back pain ever since. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. 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, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran's service induction examination does not identify any disabling conditions. Service treatment records appear to be deficient as to portions of the Veteran's actual treatment during service; however the Veteran notes recurrent back pain as a problem on his separation report of medical history. The Veteran's separation examination notes spina bifida occulta L5 and S1, spondylolysis L5, and sacralization L5. It appears from the record that the Veteran was discharged from service on account of these conditions. A March 1969 report of the medical board notes a preexisting injury to the Veteran's back and treatment for much increased pain in the lumbar region in February 1968. A contemporaneous statement from the Veteran indicates that he was told from a treating physician during service that he had a birth defect that had been made worse and aggravated by training. The Veteran also noted that his injury prior to service was a minor muscle pull which resolved completely prior to service. A September 1969 letter from the Veteran's family physician states that he never treated the Veteran for a back problem prior to enlistment. At a June 1971 physical examination, the Veteran reported injuring his back during service. He was diagnosed with chronic disc disease. Recent VA treatment records show the Veteran to be diagnosed with degenerative joint disease of the lumbar, lumbar stenosis and chronic backache. The Veteran has consistently maintained that he injured his back during a fall while training during service. This account is supported by the record in that the March 1969 report of the medical board references prior military treatment for back pain. While the exact nature of this treatment is unknown, owing to the lack of these treatment records, an injury or flare-up of the Veteran's congenital condition during service seems likely based on the evidence of record. Additionally, where a veteran served ninety days or more of active service, and certain "chronic diseases", such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from service, the disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Where the evidence shows a "chronic disease" in service or "continuity of symptoms" following service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. However, if the condition noted during service is not among those identified as presumptively chronic, then a showing of "continuity of symptoms" after service is generally required for service connection. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). While the record does not contain a formal medical statement of nexus between the Veteran's in-service injury and his current condition, the Veteran has been assessed with degenerative joint disease, a form of arthritis, and has consistently described recurring back pain since service. Where, as here, the evidence is in relative equipoise concerning a nexus between the claimed in-service disease or injury and the present disability, the Veteran will receive the benefit of the doubt on the issue. 38 U.S.C.A. § 5107(b). Moreover, as the Veteran has reported painful motion, a 10 percent evaluation would be warranted under diagnostic code 5003. 38 C.F.R. § 4.71a. Therefore, based on the Veteran's statements concerning his back, and the supporting medical evidence and resolving all doubt in the Veteran's favor, service connection for a back condition is granted. ORDER New and material evidence having been received; the Veteran's claim for service connection for a chronic back condition is reopened. Service connection for a chronic back condition is granted. REMAND The August 201 2 statement of the case lists "Dublin and Augusta VAMC treatment reports dated March 2007 through August of 2012" as evidence reviewed. However, the only recent VA treatment records currently associated with the Veteran's electronic file are from the Dublin VAMC and only for the period from July 2010 to July 2011. The remaining treatment records from the Dublin and Augusta VAMC should be obtained and associated. Furthermore, in a January 2011 authorization and consent to release information the Veteran identified several treatment providers but did not provide addresses or phone numbers. The Veteran should be contacted to request clarification on whether he would like VA to obtain these records, and if so, he should provide contact information for these providers. Additionally, both the Veteran and the March 1969 medical report on his back condition identify treatment at Parris Island, Camp Pendleton, and Twenty-nine Palms. However the Veteran's service medical records do not contain any such treatment notes. As such, VA should make additional efforts to obtain these records. Finally, the Veteran has alleged that his renal cell carcinoma is due to exposure to contaminated water at Camp Lejeune. Fifteen disease conditions have been identified as having limited/suggestive evidence of an association with TCE, PCE, or a solvent mixture exposure. See 38 U.S.C.A. § 1710(e); 38 C.F.R. § 17.400; See Federal Register, Vol. 79, No. 185 (September 24, 2014). While none of these conditions are presumptively associated with service at Camp Lejeune, manifestation of any of those diseases is considered to be sufficient to conduct a VA medical examination and request an opinion regarding its relationship to Camp Lejeune service. As such, the Veteran's personnel records must be obtained in order to ascertain whether he meets the requirements for service connection. If, based on his personnel records, the Veteran is shown to have been stationed at Camp Lejeune for 30 days or more, an examination is warranted in order to assess any nexus between his exposure to contaminated water and his current renal cell carcinoma. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service shoulder and knee symptomatology. The Veteran should also be requested to submit contact information along with the appropriate releases for any treatment providers whose records he would like VA to obtain. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Obtain and associate any VA treatment records from the Augusta or Dublin VAMCs that pertain to the Veteran. 3. Obtain the Veteran's service treatment records, to include specifically any treatment received at Parris Island South Carolina; Camp Pendleton, California; and Twenty-nine Palms, California. 4. Obtain the Veteran's personnel records identifying the locations and dates of his postings during service, specifically any records indicating a posting at Camp Lejeune. 5. If the Veteran is found to have served at Camp Lejeune for a period of 30 days or more, schedule the Veteran for an examination by an appropriate VA medical professional in order to determine whether it is at least as likely as not that the Veteran's renal cell carcinoma is related to exposure to contaminated water. The examiner should review the Veteran's claims file, conduct any necessary testing, and provide an explanation for all elements of his/her opinion, citing to clinical findings, claims file documents, and/or medical literature as appropriate. 6. Then readjudicate the issues on appeal, consistent with 38 U.S.C.A. § 1710(e) and 38 C.F.R. § 17.400 regarding Camp Lejeune Veterans. If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 2014). ______________________________________________ Steven D. Reiss Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs