Citation Nr: 1617054 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 12-10 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a right knee disability. 2. Whether new and material evidence has been received to reopen a claim of service connection for a left knee disability. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a stomach disability. 5. Entitlement to service connection for head trauma. 6. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 28, 1975 to September 15, 1975, when he was discharged as unfit for service. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Chicago, Illinois Department of Veteran Affairs (VA) Regional Office (RO). In October 2014, the case was remanded for a Travel Board hearing. In March 2015, such hearing was held before the undersigned; a transcript of the hearing is associated with the record. At the hearing the Veteran was granted a 60-day abeyance period for submission of additional evidence; no additional evidence was received. [The January 2010 rating decision on appeal also adjudicated claims of service connection for headaches and to reopen service connection for a seizure disorder. However, the Veteran's January 2010 notice of disagreement (NOD) limited his appeal to the issues listed on the preceding page.] FINDINGS OF FACT 1. In October 2014 correspondence, prior to the promulgation of a decision in the matter, the Veteran indicated he wished to withdraw his appeals seeking service connection for a neck disability, a stomach disability, and head trauma; there is no question of fact or law remaining for the Board to consider in such matters. 2. An unappealed April 2005 rating decision declined to reopen a claim of service connection for a right knee disability that was previously denied essentially on the basis that such disability was not shown. 3. Evidence received since the April 2005 rating decision does not tend to show the Veteran has a right knee disability; does not relate to the threshold unestablished fact necessary to substantiate the underlying claim of service connection; and does not raise a reasonable possibility of substantiating the claim. 4. An unappealed April 2005 rating decision declined to reopen a claim of service connection for a left knee disability that was previously denied on the basis that left knee osteochondritis dissecans (OCD) pre-existed, and was not aggravated by, the Veteran's service. 5. Evidence received since the April 2005 rating decision does not tend to show that left knee OCD did not pre-exist service or was aggravated (had pathology superimposed) therein; does not relate to an unestablished fact necessary to substantiate the underlying claim of service connection; and does not raise a reasonable possibility of substantiating the claim. 6. A low back disability is not shown. CONCLUSIONS OF LAW 1. Regarding the claims of service connection for a neck disability, a stomach disability, and head trauma, the criteria for withdrawal of an appeal by the Veteran are met; the Board has no further jurisdiction in those matters. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. New and material evidence has not been received, and the claim of service connection for a right knee disability may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 3. New and material evidence has not been received, and the claim of service connection for a left knee disability may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015). 4. Service connection for a low back disability is not warranted. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. By correspondence in November 2009, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates. He was also provided the specific notice required in claims to reopen previously finally denied claims, to include the definition of "new and material evidence." See Kent v. Nicholson, 20 Vet. App. 1 (2006). During the March 2015 hearing, the undersigned explained the issues and suggested submission of evidence to substantiate the claims, and as was noted above the Veteran was granted an abeyance period for the submission of additional evidence. The Board finds that the duties mandated by 38 C.F.R. § 3.103(c)(2) are met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He has identified certain private treatment records that have not been secured, but the record reflects multiple requests for such records were met with negative responses; he has been so advised. Notably, the ultimate burden is on the Veteran to ensure that pertinent records of private treatment are received. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In addition, while he has not been afforded an examination in conjunction with the claim of service connection for a low back disability, for reasons discussed in greater detail below, the Board finds that the requirements establishing that an examination is necessary are not met. Therefore, such examination is not warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not identified any pertinent evidence which remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. Withdrawn Appeals The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary. 38 U.S.C.A. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 20.204. A withdrawal of an appeal must be in writing, or on the record at a hearing, and is effective when received. 38 C.F.R. § 20.204. In October 2014 correspondence the Veteran expressed the intent to withdraw his appeals seeking service connection for a neck disability, a stomach disability, and head trauma. At the March 2015 hearing before the undersigned, also prior to the promulgation of a Board decision in the matters, he confirmed his intent to withdraw the appeals. Consequently, the Board finds that there is no further error of fact or law remaining in those matters for the Board to consider, and that the appeal must be dismissed. Claims to Reopen Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. Specifically, the Court interpreted the language of 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110 (2010). To substantiate a claim of service connection, there must be evidence of: a current claimed disability; incurrence or aggravation of a disease or injury in service; and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether those requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Right Knee A May 1989 rating decision denied the Veteran service connection for a right knee disability based essentially on a finding such disability was not shown. He timely filed a notice of disagreement (NOD) initiating an appeal of that decision; but following the issuance of a June 1989 statement of the case (SOC), did not timely perfect the appeal by filing a substantive appeal. Therefore, the May 1989 rating decision became final based on the evidence then of record. Thereafter, he sought to reopen that claim on several occasions, and the petitions were each denied by unappealed rating decisions, most recently in April 2005. Those decisions also became final, and the April 2005 rating decision is the last prior final decision in this matter. Therefore, new and material evidence is required to reopen the claim before it may be considered de novo. Evidence in the record at the time of the April 2005 rating decision included the Veteran's STRs, VA treatment records, private treatment records, lay statements, and correspondence from VA providers. Evidence received since the April 2005 rating decision includes updated VA treatment records, private treatment records, new lay statements, and hearing testimony (all of which are silent for a diagnosis of right knee disability). As such records were not previously in the record, they are "new." However, for such evidence to also be considered material, it must tend to show a current right knee disability. As the new evidence is silent for even the suggestion of a current right knee disability, it does not relate to the threshold previously unestablished fact necessary to substantiate the underlying claim of service connection for a right knee disability. Even considering the low threshold standard for reopening endorsed by the Court in Shade, the evidence does not raise a reasonable possibility of substantiating such claim. Accordingly, it is not new and material and the claim of service connection for a right knee disability may not be reopened. Left Knee A March 1976 rating decision denied the Veteran's initial claim of service connection for a left knee disability based essentially on a finding that such disability preexisted service and was not aggravated therein. It was noted that he complained of left knee problems prior to service that left him unable to work for a time, and within a month following induction received a diagnosis of OCD of the left medial femoral condyle, which a Medical Board found pre-existed service (and recommended he be discharged on the basis that he was unfit for induction). He was informed of that decision and his appellate rights and did not initiate a timely appeal. Therefore, that decision became final based on the evidence then of record. Thereafter, unappealed (and final) rating decisions, most recently in April 2005, declined his previous petitions to reopen the claim. Accordingly, new (submitted since April 2005) and material evidence is needed to reopen the claim before it may be considered de novo. Evidence of record at the time of the April 2005 rating decision included the Veteran's STRs, VA treatment records, private treatment records, lay statements, and correspondence from VA providers. The new evidence received includes updated treatment records, new lay statements, and hearing testimony (all of which confirm he has a left knee disability, but do not include any information regarding its etiology). As this evidence was not previously in the record, it is certainly "new." However, given the basis for the April 2005 rating decision and the earlier prior final determinations, for the evidence to also be considered material, it must tend to show either that the left knee OCD diagnosed in service was aggravated during service, or that it did not pre-exist service at all. Alternatively, the evidence would also be material if it tended to show the he has another (superimposed) left knee disability that is related to his service/injuries therein. As nothing in the new evidence tends to show OCD did not pre-exist service, or was aggravated in service, or relates other knee pathology to service, such evidence received does not pertain to a previously unestablished fact needed to substantiate the claim of service connection for a left knee disability. Even considering the low threshold standard for reopening endorsed by the Court in Shade, it does not raise a reasonable possibility of substantiating the claim of service connection for a left knee disability. Accordingly, the new evidence received is not material, and the claim of service connection for a left knee disability may not be reopened. Service Connection for a Low Back Disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge when the evidence establishes that disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established by showing continuity of symptomatology after discharge. 38 C.F.R. § 3.303(b). To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; 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, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In the absence of proof of a current disability, there is no valid claim of service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held the requirement that a current disability be present is satisfied when a claimant has a disability at the time of a claim for VA disability compensation is filed or at any time during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). Aside from the Veteran's implicit allegations that he has a low back disability (as he filed a claim of service connection for such), there is no evidence in the record even suggesting he has a current low back disability. His STRs are silent for complaints, treatment, or diagnosis related to a low back disability. While a February 2007 VA treatment record does note complaints of chronic low back pain, there is no a corresponding diagnosis of a disability. Notably, pain, of itself, without underlying pathology, is not a compensable disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). As is noted above, absent any evidence of a present disability, there is no valid claim of service connection. See Brammer, 3 Vet. App. at 225. Consequently, service connection for a low back disability is not warranted. As the preponderance of the evidence is against the Veteran's appeals to reopen claims of service connection for right and left knee disabilities and seeking service connection for a low back disability, the benefit of the doubt rule does not apply; the appeals in those matters must be denied. ORDER The appeals seeking service connection for a neck disability, a stomach disability, and head trauma are dismissed. The appeals to reopen claims of service connection for right and left knee disabilities are denied. Service connection for a low back disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs