Citation Nr: 1600183 Decision Date: 01/05/16 Archive Date: 01/12/16 DOCKET NO. 14-32 548 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for a back disability. 2. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to a bilateral shoulder disability. 3. Entitlement to service connection for a back disability. 4. Entitlement to service connection for a bilateral shoulder disability. 5. Entitlement to service connection for headaches. 6. Entitlement to service connection for a chest infection. 7. Entitlement to service connection for an abscess of the left finger. 8. Entitlement to service connection for arthritis of the bilateral arms and elbows. 9. Entitlement to service connection for arthritis of the left hand. 10. Entitlement to service connection for arthritis of the right hand. 11. Entitlement to service connection for arthritis of the bilateral knees. 12. Entitlement to service connection for arthritis of the bilateral ankles. 13. Entitlement to service connection for a bacterial disease affecting the face and genitals. 14. Entitlement to service connection for residuals of a cold weather injury to the lower extremities. 15. Entitlement to a rating in excess of 10 percent for conjunctivitis of the bilateral eyes. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1954, including service in the Republic of Korea (Korea) during the Korean War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the VA RO. A September 2010 rating decision: 1) declined to reopen the Veteran's claim of entitlement to service connection for a bilateral shoulder disability; 2) denied service connection for arthritis of the bilateral hands; 3) denied service connection for arthritis of the bilateral knees, and; 4) denied service connection for residuals of a cold injuries to the lower extremities. A June 2012 rating decision: 1) granted service connection for a bilateral eye disability and assigned an initial noncompensable evaluation (a September 2013 rating decision increased the initial evaluation to 10 percent); 2) declined to reopen the Veteran's claim of entitlement to service connection for a back disability; 3) denied service connection for headaches; 4) denied service connection for a chest infection; 5) denied service connection for an abscess of the left finger; 6) denied service connection for arthritis of the bilateral arms and elbows; 7) denied service connection for arthritis of the bilateral ankles, and; 8) denied service connection for a bacterial infection affecting the face and genitals. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of: 1) service connection for a back disability; 2) service connection for a bilateral shoulder disability; 3) service connection for headaches; 4) service connection for a chest infection; 5) service connection for arthritis of the bilateral arms and elbows; 6) service connection for arthritis of the right hand; 7) service connection for arthritis of the bilateral knees; 8) service connection for arthritis of the bilateral ankles; 9) service connection for residuals of a cold weather injury to the lower extremities, and; 10) a rating in excess of 10 percent for conjunctivitis of the bilateral eyes are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A March 1969 rating decision denied the Veteran's claims of entitlement to service connection for a back disability and bilateral shoulder disability. 2. The evidence received since the March 1969 decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claims, and raise a reasonable possibility of substantiating the claims of entitlement to service connection for a back disability and bilateral shoulder disability. 3. The weight of the competent and credible evidence of record is against a finding that the Veteran has had an abscess of the left finger, arthritis of the left hand, or a bacterial disease affecting the face and genitals at any time during the course of the appeal. CONCLUSIONS OF LAW 1. The March 1969 rating decision denying the Veteran's claims of entitlement to service connection for a back disability and bilateral shoulder disability is final. 38 U.S.C.A § 4005(c) (1958, Supp. 1962); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969). 2. New and material evidence has been received sufficient to reopen the claims of entitlement to service connection for a back disability and bilateral shoulder disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2015). 3. Neither an abscess of the left finger, nor arthritis of the left hand, nor a bacterial disease affecting the face and genitals was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Board has reopened the Veteran's claims of entitlement to service connection for a back disability and bilateral shoulder disability. As such, the Board finds that any error related to the VCAA regarding these claims are moot. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the Veteran's claims of entitlement to service connection for an abscess of the left finger, arthritis of the left hand, and a bacterial disease affecting the face and genitals, VA has certain notice and assistance obligations to claimants. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the instant case, the Veteran has been provided with all appropriate notification, and he has not otherwise alleged or demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to this claim for benefits. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA treatment records have been obtained, to the extent available. In the instant case, the Veteran underwent examinations addressing his abscess of the left finger, left hand, and bacterial infection of the fact and genitals in April 2012. The evidence indicates that the examiners reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The examination reports are therefore adequate for the purpose of rendering a decision in the instant appeal. 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran presented testimony before the undersigned in September 2015. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file, and it is not contended otherwise. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. New and Material Evidence Decisions of the RO and the Board that are not appealed in the prescribed time are final. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2015). A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review the former disposition. 38 U.S.C.A. § 5108 (West 2014); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2015); Smith v. West, 12 Vet. App. 312 (1999). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273 (1996). For the purposes of determining whether it is material, the credibility of newly submitted evidence is presumed, unless the evidence is inherently incredible or considered to be beyond the competence of a witness. Justus v. Principi, 3 Vet. App. 510 (1992). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in development has been satisfied. Elkins v. West, 12 Vet. App. 209 (1999). The Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board also notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claim of entitlement to service connection for a bilateral shoulder disability was last finally denied in a March 1969 rating decision, which found that the Veteran' suffered only from Sprengel's deformity of both shoulders, which is a congenital defect, and therefore not generally subject to service connection. The Veteran did not appeal the March 1969 rating decision, no evidence was received within one year of the March 1969 rating decision, and no new service records have been submitted. Therefore, the March 1969 rating decision is final. Since that time, the Veteran has been diagnosed with an additional disability; in July 2011, the Veteran was diagnosed with arthritis of the bilateral shoulders. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly-submitted evidence, the Veteran's claim for service connection for a bilateral shoulder disability was last denied because the only diagnosed disability was the congenital defect of Sprengel's deformity. Thus, with evidence suggesting that the Veteran has an additional shoulder disability, the Board finds that the newly-submitted evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for a bilateral shoulder disability is reopened. The Veteran's claim of entitlement to service connection for a back disability was last finally denied in a March 1969 rating decision, which found that the Veteran suffered from sacralization of the fifth lumbar vertebra that was unrelated to his active service. The Veteran did not appeal the March 1969 rating decision, no evidence was received within one year of the March 1969 rating decision, and no new service records have been submitted. Therefore, the March 1969 rating decision is final. Since that time, the Veteran has been diagnosed with an additional disability; in July 2011, the Veteran was diagnosed with arthritis of the back. That evidence is new because it has not previously been submitted to VA. Regarding the materiality of the newly-submitted evidence, the Veteran's claim for service connection for a back disability was last denied because the only diagnosed disability was sacralization of the fifth lumbar vertebra. Thus, with evidence suggesting that the Veteran has an additional back disability, the Board finds that the newly-submitted evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for a back disability is reopened. Service Connection The Veteran contends that he has an abscess of a left finger and a bacterial disease affecting the face and genitals as a result of active duty service. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 Fed. Cir. 2000). The requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). With respect to the Veteran's claim of entitlement to service connection for an abscess of the left finger, the weight of the evidence does not show that the Veteran has manifested such a disability at any time since he filed his claim for service connection in May 2010. The Veteran underwent a VA examination in April 2012, at which time the examiner found that the Veteran did not have, nor had he ever had, a disability of the left finger. The Veteran's available medical records otherwise show no diagnosis with, or treatment for, an abscess of the left finger. With respect to the Veteran's claim of entitlement to service connection for arthritis of the left hand, the weight of the evidence does not show that the Veteran has manifested such a disability at any time since he filed his claim for service connection in May 2010. The Veteran underwent a VA examination in April 2012, at which time the examiner found that the Veteran did not have, nor had he ever had, a disability of the left hand. An April 2012 imaging study of the Veteran's left hand revealed no significant abnormal findings. The Veteran's available medical records otherwise show no diagnosis with, or treatment for, arthritis of the left hand. With respect to the Veteran's claim of entitlement to service connection for a bacterial infection of the face and genitals, the weight of the evidence does not show that the Veteran has manifested such a disability at any time since he filed his claim for service connection in February 2011. The Veteran underwent a VA examination in April 2012, at which time the examiner found that the Veteran did not have, nor had he ever had, a skin condition. The Veteran's available medical records otherwise show no diagnosis with, or treatment for, a bacterial infection affecting the face and genitals. While the Board acknowledges that the Veteran may complain of subjective symptoms associated with these claims, such as pain, VA does not generally grant service connection for symptoms of pain alone, without an identified basis for those symptoms. In other words, VA needs to identify a disability, not symptoms of a disability. To the extent that the Veteran claims to experience symptoms such as pain, the Board has no reason to doubt that the Veteran currently experiences such symptoms. The Veteran is competent to testify as to such. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran, as a layperson, is not competent to report that any symptoms that he currently experiences rise to the level of a "disability" for VA purposes. Thus, while the Veteran may experience certain symptoms, his statements are not sufficient to establish the presence of an abscess of the left finger, arthritis of the left hand, and a bacterial infection of the face and genitals at this time, particularly given the lack of complaint to clinicians of symptoms associated with these conditions, and the findings of VA examiners that the Veteran did not suffer from these disabilities. In sum, the Board concludes that the preponderance of the evidence is against granting service connection for an abscess of the left finger, arthritis of the left hand, or a bacterial infection of the face and genitals. As the preponderance of the evidence is against the claims, the claims are denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claims of entitlement to service connection for a bilateral shoulder disability and back disability are reopened, and to that extent only, the appeals are granted. Service connection for an abscess of the left finger is denied. Service connection for arthritis of the left hand is denied. Service connection for a bacterial disease affecting the face and genitals is denied. REMAND With respect to the Veteran's claim of entitlement to a rating in excess of 10 percent for conjunctivitis of the bilateral eyes, the Veteran was last provided with a VA examination addressing his bilateral eye disability in April 2015. In his September 2015 hearing before the undersigned, the Veteran stated that his visual acuity had worsened since the time of his April 2015 VA examination. The Veteran additionally stated that he had received continuing treatment at the VA Medical Center in Hampton, Virginia; these medical records have not been associated with the Veteran's claims file. Accordingly, with evidence of record suggesting that the Veteran's bilateral eye disability may have worsened, an examination should be obtained on remand that fully addresses the current severity of the Veteran's bilateral eye disability. The examiner should distinguish between the symptomatology that the Veteran suffers as a result of his service-connected conjunctivitis and the symptomatology that the Veteran suffers as a result of non-service connected eye conditions. With respect to the remanded claims for service connection, the Veteran served in Korea during the Korean War and has credibly claimed in-service exposure to cold weather. The Veteran has not been provided with examinations addressing his claims of entitlement to service connection for headaches, a chest infection, arthritis of the back, arthritis of the bilateral shoulders, arthritis of the bilateral arms and elbows, arthritis of the right hand, arthritis of the bilateral knees, arthritis of the bilateral ankles, and a cold weather injury to the lower extremities. The evidence of record suggests that the Veteran may have been diagnosed with each of these disabilities. More specifically, the Veteran was treated for a headache in September 2013, and the Veteran has otherwise contended that he has suffered from headaches continually since service. The Veteran was diagnosed with symptoms associated with a chest infection in November 2011, September 2013, and November 2013 (at which time the clinician noted that the condition was an "old problem"). The Veteran was diagnosed with arthritis of the back in July 2011. The Veteran was diagnosed with arthritis of the bilateral shoulders in July 2011. The Veteran was diagnosed with arthritis of the bilateral elbows in September 2011. The Veteran was diagnosed with arthritis of the right hand in June 2013 (degenerative joint disease of the right thumb, November 2013 (right thumb arthrosis), and January 2015. The Veteran was diagnosed with arthritis of the bilateral knees in January 2011 and July 2011. The Veteran was diagnosed with arthritis of the bilateral ankles in July 2010. The Veteran was diagnosed with pain in the lower limbs in November 2013. While the Board acknowledges that pain alone is not a disability for which service connection may be granted, an examination should be conducted addressing this condition in order to establish whether there is a disability underlying this symptom. Accordingly, with conceded in-service exposure to cold weather and an indication that the Veteran has received the above diagnoses, the Board finds that examinations addressing each of these issues should be provided to the Veteran on remand. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Ensure that all records relating to treatment of the remanded disabilities have been associated with the Veteran's claims file. 2. Then, schedule the Veteran for a VA examination to address the severity of the eye disability that is specifically attributable to the Veteran's service-connected conjunctivitis. 3. Then, schedule the Veteran for VA examinations to determine the nature and etiology of his headaches, chest infection, arthritis of the back, arthritis of the bilateral shoulders, arthritis of the bilateral elbows, arthritis of the right hand, arthritis of the bilateral knees, arthritis of the bilateral ankles, and pain in his lower limbs. All appropriate diagnostic testing should be performed. For each of these opinions, please assume that the Veteran was exposed to cold weather while serving in Korea during the Korean War. After an examination of the Veteran and review of the Veteran's claims file, the examiner should: a) With regard to the Veteran's headache disability: i) Has the Veteran experienced a chronic headache disability at any time since he filed his claim in May 2010, taking into consideration that the Veteran received treatment for headaches in September 2013. Why or why not? ii) If it is found that the Veteran has experienced a chronic headache disability: a) is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or were otherwise caused by the Veteran's active duty service? Why or why not? b) Is it at least as likely as not (that is, a 50 percent probability or greater) that the headache disability was caused by the Veteran's service-connected bilateral eye disability? Why or why not? c) Is it at least as likely as not (that is, a 50 percent probability or greater) that the headache disability was aggravated (that is, permanently increased in severity beyond the natural progress of the disorder) by the Veteran's service-connected bilateral eye disability. Why or why not? If aggravation is found, the extent thereof must be set forth. b) With regard to the Veteran's claimed chest infection: i) Has the Veteran experienced a chronic chest infection disability at any time since he filed his claim in February 2011, taking into consideration the Veteran's receipt of treatment for such condition in November 2011, September 2013, and November 2013. Why or why not? ii) If it is found that the Veteran has experienced a chronic chest infection disability, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or were otherwise caused by the Veteran's active duty service, to include his in-service treatment for symptoms associated with such condition in August 1953 and December 1953? c) With regard to the Veteran's claimed arthritis of the back: i) Does the Veteran have arthritis of the back, taking into consideration that the Veteran was diagnosed with such condition in July 2011. Why or why not? ii) If it is found that the Veteran has arthritis of the back, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? Why or why not? d) With regard to the Veteran's claimed arthritis of the bilateral shoulders: i) Does the Veteran have arthritis of the bilateral shoulders, taking into consideration that the Veteran received treatment for such condition in July 2011. Why or why not? ii) If it is found that the Veteran has arthritis of the bilateral shoulders, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? e) With regard to the Veteran's claimed arthritis of the bilateral elbows and arms: i) Does the Veteran have arthritis of the bilateral elbows and arms, taking into consideration that the Veteran received treatment for such condition in September 2011. Why or why not? ii) If it is found that the Veteran has arthritis of the bilateral elbows and arms, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? Why or why not? f) With regard to the Veteran's claimed arthritis of the right hand: i) Does the Veteran have arthritis of the right hand, taking into consideration that the Veteran received treatment for degenerative joint disease of the right thumb in June 2013, and arthrosis of the right thumb in November 2013. Why or why not? ii) If it is found that the Veteran has arthritis of the right hand, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? Why or why not? g) With regard to the Veteran's claimed arthritis of the bilateral knees: i) Does the Veteran have arthritis of the bilateral knees, taking into consideration that the Veteran received treatment for such condition in January 2011 and July 2011. Why or why not? ii) If it is found that the Veteran has arthritis of the bilateral knees, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? Why or why not? h) With regard to the Veteran's claimed arthritis of the bilateral ankles: i) Does the Veteran have arthritis of the bilateral ankles, taking into consideration that the Veteran received treatment for such condition in July 2010. Why or why not? ii) If it is found that the Veteran has arthritis of the bilateral ankles, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? Why or why not? i) With regard to the Veteran's claimed residuals of a cold weather injury of the lower extremities: i) Does the Veteran have residuals of a cold weather injury of the lower extremities, taking into consideration that the Veteran received treatment for leg pain in November 2013. Why or why not? ii) If it is found that the Veteran has residuals of a cold weather injury of the lower extremities, is it at least as likely as not (that is, a 50 percent probability or greater) that the such disability either began during or was otherwise caused by the Veteran's active duty service? Why or why not? 3. Then, readjudicate the Veteran's claims. If a decision is adverse to the Veteran, issue a supplemental statement of the case as to that issue and allow the appropriate time for response. Then, return the claims to the Board. The Veteran has the right to submit additional evidence and argument on the matters that 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 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs