Citation Nr: 1627577 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 13-18 536A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for service connection for index finger, left hand. 2. Whether new and material evidence has been presented to reopen a previously denied claim for service connection for a right knee injury. 3. Entitlement to an initial compensable evaluation for wart, middle finger, left hand. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to June 1983. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in March 2016. 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 Board notes that additional evidence has been received since the December 2013 supplemental statement of the case. However, in March 2016, the Veteran provided a waiver of the RO's initial consideration of that evidence. See 38 C.F.R. § 20.1304(c) (2015). The issue of an initial compensable evaluation for wart of the middle finger, left hand is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction. FINDINGS OF FACT 1. At his March 2016 Board hearing and in a subsequent March 2016 statement, the Veteran requested to withdraw the appeal of entitlement to service connection for his left index finger. 2. A claim to reopen a claim of service connection for a right knee injury was denied in an October 2005 rating decision. The Veteran did not appeal this decision. 3. Evidence submitted since the October 2005 denial of service connection of a right knee injury was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating his claim for service connection. 4. The Veteran's current right knee disability is not linked to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of entitlement to service connection for index finger, left hand have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.204 (2015). 2. The October 2005 RO decision denying the claim to reopen a claim of service connection for a right knee disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). 3. The criteria for reopening the claim of entitlement to service connection for a right knee disability have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claim The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. At the March 2016 Board hearing, the Veteran voiced his desire to withdraw his appeal for entitlement to service connection for his left index finger. Given this statement, there remain no allegations of errors of fact or law on this issue for appellate consideration. The Board does not have jurisdiction to review this appeal, and the specified claim must be dismissed. II. Reopening a Previously Denied Claim Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). An exception to this rule is 38 U.S.C.A. § 5108 (West 2014), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2015). New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has 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 v. Shinseki, 24 Vet. App. 110 (2010); see also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). The Veteran first sought service connection for a right knee condition in an October 1998 claim. The RO denied this claim in an August 1999 rating decision, finding the claim was not-well-grounded. The Veteran did not appeal the decision. In July 2005, he submitted a claim to reopen. This claim to reopen was denied in an October 2005 rating decision as it was determined that new and material evidence had not been received. No new and material evidence was received within one year of notice of the rating decision. 38 C.F.R. § 3.156(b). Thus, the October 2005 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2015). New evidence has been received since the October 2005 rating decision. A June 2012 VA examination and report and a subsequent July 2012 VA addendum opinion are directly related to the service connection claim and discuss the Veteran's current disability, right knee degenerative joint disease (DJD), diagnosed by the June 2012 VA examiner, and the condition's relation to service. The Board finds that this new evidence relates to an unestablished fact necessary to substantiate the claim, including a current disability, and raises a reasonable possibility of substantiating the claim of service connection for a right knee injury. Having found that new and material evidence has been added to the record, the Veteran's claim is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The reopened claim of service connection for a right knee disability is decided on the merits below. III. Service Connection Claim VA's Duties to Notify and Assist VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). A standard October 2011 letter satisfied the duty to notify provisions. VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs) have been obtained. Post-service VA treatment records have also been obtained, including records from the Social Security Administration (SSA). Although the Board is remanding for further development the claim of an initial compensable rating for a wart on the Veteran's left middle finger, in part, to attempt to obtain additional VA treatment records, remand is not necessary for the right knee claim decided below as there is no reasonable possibility that further assistance would substantiate the right knee claim. See 38 C.F.R. § 3.159(d). Additionally, the Veteran submitted the recent April 2016 x-ray report of the right knee. The Veteran was provided a VA medical examination in June 2012 and a subsequent addendum report was submitted in July 2012. The examination report and subsequent addendum are sufficient evidence for deciding the right knee claim. The reports are adequate as they were based upon consideration of the Veteran's prior medical history and examinations, describe the disabilities in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations. Thus, VA's duty to assist has been met for the claim. Analysis The Board will proceed to address the merits of the right knee claim. The Veteran is not prejudiced by this action as the RO reopened the claim and considered the merits as well. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). The Veteran is seeking service connection for his current right knee disability, which has been diagnosed as DJD of the right knee. At the March 2016 Board hearing, he indicated that while in service he was leading his squad at night in Germany, when he fell down a deep ravine causing a lump on his knee. He indicates the lump still hurts when he goes down to his knees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). The Veteran's STRs document that he received treatment in August 1982 for a right knee injury. He reported to the emergency room in August 1982 and the treatment record indicated abrasions to his right leg. Further, a September 1982 record indicates a right knee injury, including a dime size abrasion to the right patella, pain, swelling and slight effusion. In addition, the June 1983 separation examination noted exostosis of the right knee. Thus, the STRs show the Veteran's claimed in-service injury. A post-service VA treatment record from August 2005 indicated the Veteran complains of chronic pain that is not a constant problem but is also not new. The Veteran reported the pain is secondary to his service injury. The Veteran was afforded a June 2012 VA examination. He was diagnosed with right knee DJD and the examiner found normal range of motion. Thereafter, a July 2012 VA addendum report was provided to discuss the Veteran's current condition in relation to his in-service right knee injury. The examiner indicated that after extensive review of the Veteran's file, his current chronic disability of the knee is not caused by or the result of his service. He noted the Veteran's in-service treatment after his injury and also the Veteran's discharge examination which indicated exostosis of both knees, described as 3 x 3.5 cm exostoses of both lateral tibia. He reported the June 2012 radiographs indicated mild to moderate medial joint space narrowing with no other changes and no other deformities of either distal femur or tibia. He further found no evidence of exostoses or other abnormalities. The examiner further noted the Veteran's October 2003 disability report pursuant to his claim for benefits from SSA. In the 2003 report, the Veteran indicated that he was a service technician from May 1993 to July 2002 for an apartment. This position required him to make repairs on apartments, remove stoves, refrigerators, washers, dryers and required him to walk up and down stairs. The examiner noted that in his job, the Veteran walked approximately 3 hours per day, stood 1 hour per day, climbed a half hour per day, stooped for 2 hours per day, knelt for a half hour per day, crawled for a half hour per day and handled large objects for 1 hour per day. The examiner noted that the heaviest weight lifted would be 100 pounds and that frequently he lifted 25 pounds, while no notation was made in the record of difficulty with his knees. The July 2012 examiner concluded the Veteran's current arthritis condition, which is reported as mild to moderate medial joint space narrowing, without any other changes to differentiate between osteoarthritis or inflammatory etiology, is due to the normal condition of aging and has no relation to the skin abrasion he experienced in the area of his right knee during service. The Board finds that the June 2012 VA examination and subsequent addendum opinion from July 2012 are highly persuasive on the issue of a possible nexus of the Veteran's right knee disability to service. The July 2012 examiner considered the Veteran's theory but explained why the medical opinion is not one linking the current disability to service. The opinion is predicated on a thorough review of the record, to include his service treatment records, social security records discussing his employment and other statements of the Veteran. Further, it considered all of the pertinent evidence of record and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). This opinion is the most probative evidence as to nexus in the claims file and weighs against the claim. The Board notes the March 2016 Board hearing, in which the Veteran reported that after injuring his knee in service, it was swollen and when the swelling went down there was a lump, like a scar which remained thereafter. He reported that it did not give him much pain and he could carry on with most of his duties, but would hurt when he went down to his knees. The Board acknowledges the Veteran's contention that his current knee disability is related to his service. However, the only disability found during the June 2012 VA examination was right knee DJD. Further, the Veteran is not competent to provide a nexus opinion for his current knee condition in this specific case because it is a medically complex question requiring related expertise as to the origin of arthritis diagnosed may years after an injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As competent medical evidence is required to decide the claim, the probative July 2012 VA medical opinion, which concluded that the clinical evidence fails to support a nexus between the Veteran's current right knee disability and service, is dispositive of the claim. Thus, the Veteran's opinion is afforded less evidentiary weight in comparison to the medical expert's opinion. Furthermore, the Veteran submitted additional April 2016 x-ray reports (that actually showed no acute abnormality), which did not address the nexus element. The Board also finds that the Veteran's right knee arthritis did not manifest to a compensable degree within a year of separation from service. There is no medical evidence within one year of service that supports arthritis of the right knee and the July 2012 VA examiner explained that the arthritis was age-related. Thus, service connection is not warranted on a presumptive basis for chronic diseases. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Moreover, for similar reasons, a continuity of symptomatology is not shown in light of the post-service absence of medical treatment. The Board further notes the Veteran applied for SSA benefits in 2003 and did not indicate or seek treatment for his right knee, or show complaints of knee problems when several other complaints were noted; thus, a nexus is not shown under the theory of continuity of symptomatology. See 38 C.F.R. § 3.303(b). In sum, the Board finds that the Veteran's current right knee disability was not incurred in service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015). Therefore, service connection is not warranted for a right knee disability. ORDER The issue of whether new and material evidence has been presented to reopen a previously denied claim for service connection for index finger, left hand, is dismissed. As new and material evidence having been received, the claim of service connection for a right knee disability is reopened and to this limited extent, the appeal is granted. Service connection for a right knee disability is denied. REMAND The Veteran is also seeking a higher initial rating for his service-connected wart on the middle finger of his left hand. The December 2011 rating decision granted a noncompensable rating for the skin disorder, effective October 16, 1998. The Veteran reports in the March 2016 Board hearing that he had the service-connected wart on his left hand removed in 2013 or 2014; however, the report of the procedure removing the wart is not of file. He further reports that prior to his wart removal procedure he experienced a little pain and that the wart also affected his movement. A June 2012 VA treatment record indicated a 13 x 7 mm wart on the left middle finger and application of salicylic acid 17 percent twice daily in an attempt to remove it. A review of the record shows he has also been prescribed a cream to treat his wart, triamcionolone acetonide 0.025 percent. The VA treatment records show that the Veteran has been prescribed this cream since at least January 2010. The Board notes the Veteran underwent a November 2011 VA examination. The examiner indicates the Veteran had a 1 cm x 1 cm wart on the left middle finger. He reported the Veteran has not received immunosuppressive drugs or systemic therapy for this disorder. Since this examination, as noted above, the Veteran's VA treatment records show that he has received treatment with the topical cream, triamcionolone acetonide 0.025 percent, since at least January 2010. The Board notes this treatment may constitute systemic therapy of a corticosteroid. See 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806; see also Johnson v. McDonald, 27 Vet. App. 497, 500 (2016) (finding that corticosteroids may be an example of "systemic therapy" even when topical). The Board notes the effective date of the noncompensable rating is October 16, 1998. Therefore, multiple rating criteria apply for DC 7806 pertaining to skin disorders, as it was revised during the appeal period, effective August 30, 2002. See 67 Fed. Reg. 49590 (July 31, 2002). As there is no indication that the revised criteria are intended to have a retroactive effect, the Board has the duty to adjudicate the claim under the former criteria for any prior portion of the rating period, and to consider the revised criteria for the period beginning on the effective date of the new provisions, August 30, 2002. See, Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003) ("[C]ongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.") (citations omitted)). Former DC 7806 (which pertains to eczema), prior to August 30, 2002, provided a 10 percent rating for a skin disorder with exfoliation, exudation or itching, if involving an exposed surface or extensive area; a 30 percent rating is assigned when the skin disorder is manifested by exudation or constant itching, extensive lesions or marked disfigurement; and a rating of 50 percent is assigned for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or if the condition is exceptionally repugnant. Id. Effective August 30, 2002, the revised DC 7806 expanded to address dermatitis as well as eczema. Under the amended DC, a noncompensable rating is warranted if less than five percent of the entire body is affected, less than five percent of exposed areas are affected, or no more than topical therapy is required during the past 12-month period; a 10 percent evaluation requires at least five percent but less than 20 percent of the entire body being affected, at least five percent but less than 20 percent of exposed areas being affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs being required for a total duration of less than six weeks during the past 12-month period; a 30 percent evaluation is for if 20 to 40 percent of the entire body is affected, 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period; and the maximum rating of 60 percent is reserved for when more than 40 percent of the entire body or more is affected, 40 percent or more of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Given the time length of the rating period in question and the amended provisions, the Board finds that a retrospective medical assessment regarding the severity of the skin condition is necessary to properly evaluate the claim. In light of the remand, any relevant ongoing VA treatment records should be requested on remand. See 38 U.S.C.A. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, this issue is REMANDED for the following actions: 1. Obtain VA treatment records since November 2013, as well as the surgery report from 2013 or 2014. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to assess the current severity of the left middle finger wart disability, as well as a retrospective opinion of the severity for the period since October 16, 1998. The entire claims file should be made available to and be reviewed by the clinician in conjunction with the opinion. The opinion should include an assessment regarding the severity of the Veteran's left middle finger wart disability with respect to the relevant rating criteria cited above, during the entire appeal period. The examiner should identify all symptomatology and functional impairment associated with the wart on the middle finger of the left hand, including: the exposed area of the body affected by the skin disability, the type of treatment received for the skin disorder (i.e., topical therapy, systemic therapy such as corticosteroids or other immunosuppressive drugs), and the length of time and frequency the Veteran has received such treatment. The examiner should discuss the Veteran's ongoing use of the topical cream, triamcionolone acetonide 0.025 percent, since at the least January 2010, and his subsequent surgery to remove the wart. The examiner should also discuss the Veteran's lay statements, including his reports of pain and impaired movement during the March 2016 hearing. A complete rationale should be provided for each opinion reached. 3. Finally, readjudicate the issue remaining on appeal, including under both the prior and revised rating criteria as appropriate. If the full benefit sought remains denied, issue 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court of for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs