Citation Nr: 1630533 Decision Date: 08/01/16 Archive Date: 08/11/16 DOCKET NO. 13-13 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right shin disability. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a left foot disability. 3. Entitlement to service connection for a left foot disability. 4. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a right knee disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1981 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2016, the Veteran testified at a videoconference hearing before the undersigned at the RO in Atlanta, Georgia. A transcript of the hearing is part of the record. There was additional evidence added to the record after the issuance of the March 2013 statement of the case both prior to and after certification of the issues to the Board. The Board finds that this additional evidence was neither relevant such that the issuance of a supplemental statement of the case was required as set forth in 38 C.F.R. § 19.37(a), nor pertinent such that solicitation of a waiver was necessary as set forth in 38 C.F.R. § 20.1304(c). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for a left foot disability and right knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent, probative evidence does not indicate that the Veteran has, or any time pertinent to the appeal, had a right shin disability. 2. In a final decision issued in February 2005, the RO denied a claim of entitlement to service connection for bilateral foot and right knee conditions. 3. Evidence received since the February 2005 decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left foot and right knee conditions. CONCLUSIONS OF LAW 1. The criteria for establishment of service connection for a shin disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The February 2005 rating decision that denied entitlement to service connection for a bilateral foot and right knee condition is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a left foot and right knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) In light of the Board's favorable decision to reopen the claims for service connection for left foot and right knee disability, no discussion of VA's duty to notify and assist is necessary. With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide. A VCAA letter dated in July 2010 was mailed to the Veteran. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The letter advised the Veteran of the evidence and information necessary to substantiate his claim for service connection. The letter also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs) and all available VA and private medical records have been obtained and associated with the claims file. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. 38 C.F.R. § 3.159(c)(4) (2015). Concerning the issue of a disorder of the right shin, as will be explained below, the record before the Board shows no medical evidence of a current disability and no credible lay evidence of persistent or recurrent symptoms of a disability. Hence, the Board determines that an examination is not needed because the Veteran has not made a sufficient showing to entitle him to a medical examination concerning his claim for service connection of a right shin disorder. 38 U.S.C.A. § 5103A(d)(1)-(2) (West 2014). Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the merits of the issue addressed in this decision, and neither has argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced the Veteran in the adjudication of his appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board videoconference hearing, the VLJ noted the elements that were lacking to substantiate the claim of service connection. The Veteran was assisted at the hearing by an accredited representative from the Georgia Department of Veterans Services. The representative and the VLJ asked questions to ascertain the extent of any in-service event or injury, and whether the Veteran had any current disability that was related to his service. They also asked questions to draw out the current state of the Veteran's claimed disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The Board hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the Board hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(C)(2). Based on a review of the claims file, 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. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. II. New and Material Evidence A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curium) (holding that the "presumption of credibility" doctrine continues to be precedent). The Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. The Veteran's claim of entitlement to service connection for a bilateral foot and right knee condition was originally denied in a February 2005 rating decision. At that time, the RO denied the claim for a bilateral foot condition because the Veteran had a normal evaluation of the feet at the August 1991 separation examination. The RO also denied the claim for a right knee condition because the August 1991 separation examination showed a normal evaluation of the right lower extremity. The RO concluded that service connection for a bilateral foot and right knee condition were denied since the condition neither occurred in nor was caused by service. The record does not contain a copy of a notice letter sent to the Veteran in connection with that decision. In this regard, the Board notes that a "presumption of regularity" attaches to the official acts of public officers. See, e.g., Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), aff'd sub nom. Marciniak v. West, 168 F.3d 1322 (Fed. Cir. 1998); Chute v. Derwinski, 1 Vet. App. 352, 353 (1991). That is to say, there is a presumption, rebuttable only by "clear evidence to the contrary," that public officers have properly discharged their official duties. Ashely v. Derwinski, 2 Vet. App. 307, 308-309 (1992). In Kuo v. Derwinski, 2 Vet. App. 662, 665 (1992), the United States Court of Veterans Appeals held, citing Ashley, supra, that "[i]n the absence of clear [underline added] evidence to the contrary, . . . it must be presumed that the Secretary properly discharged his official duties and mailed the letter to appellant in care of his representative in the normal course of business." Although a copy of the actual notification letter is not of record, pursuant to the presumption of regularity attending the official acts of public officers, it must be concluded that the Veteran was appropriately notified of the 2005 rating decision, and of his appellate rights. Dolan v. Brown, 9 Vet. App. 358, 362 (1996). Significantly, the Veteran has not contended that he did not receive notice of the February 2005 rating decision. Accordingly, because the Veteran did not initiate an appeal within one year, and no new evidence was received during that time frame, the February 2005 decision became final. In June 2010, the Veteran filed, in pertinent part, a claim to reopen the previously-denied claim of entitlement to service connection for a left foot and right knee condition. In the May 2011 rating decision, the RO declined to reopen the claims of service connection, finding that the Veteran had not submitted new and material evidence. The pertinent evidence added to the record since the last final denial includes VA treatment records showing that the Veteran has diagnoses of contusion of the left foot, plantar fasciitis, calcaneal spurs, and fibular collateral bursitis of the right knee; statements from the Veteran; and a March 2016 Board hearing transcript. In this case, the evidence added to the record since the last final denial supports the current disability and nexus element of the Veteran's claim of entitlement to service connection for a left foot and right knee disability. As noted above, the claim was previously denied because it was not shown that the Veteran had a bilateral foot and right knee condition or that such occurred in or was caused or aggravated by service or manifested within one year from separation. Therefore, the Veteran's VA treatment records showing a diagnosis for the left foot and right knee condition as well as lay statements regarding the reasons he did not seek treatment during service and after service are new. In addition, the evidence is material, as it raises a reasonable possibility of substantiating the claim. Finally, because the evidence is presumed to be credible, this evidence is deemed to be the requisite new and material evidence needed to reopen the claim of entitlement to service connection for left foot and right knee disability. See Kutscherousky, 12 Vet. App. at 371. Accordingly, the Board finds that new and material evidence has been submitted, and the Veteran's claim of service connection for a left foot and right knee disability will be reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. III. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2014); 38 C.F.R. 3.303(a) (2015). Regulations provide that service connection may also be established for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship, or link, between the current disability and in-service disease or injury (i.e., the nexus requirement). See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As an alternative to the nexus requirement, in certain circumstances, service connection for certain chronic diseases may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b)(2015). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. Feb. 21, 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). As the record evidence does not establish that the Veteran has one of chronic diseases listed under 38 C.F.R. § 3.309(a), the provisions of section 3.303(b) do not apply in this case. Right Shin The Veteran seeks entitlement to service connection for a right shin disorder, which he believes is a result of favoring his right side due to his left foot and knee condition. At the outset, the Board notes that the Veteran's service treatment records are negative for symptoms, treatment, or diagnosis of a right shin condition. The Veteran's July 1981 induction medical examination report, February 1984 re-enlistment examination, and August 1991 separation examination revealed normal findings of the lower extremities and were absent of any discussion of a right shin condition, diagnosis, or treatment thereof. At the March 2016 Board Hearing, the Veteran testified that he developed a right shin disorder as a result of favoring his right side due to his left ankle and left foot disability. He testified that "it would swell in my shin and that long bone that seems to go all the way down to my foot. It would swell up and I could not walk. My Achilles would swell and I was just helpless. My brother, he used to carry me on his shoulders to get me to the doctor." However, a review of post-service records on appeal including the Augusta VA Medical Center and private treatment records from the Central Georgia Feet and Ankle Center, P.C. are similarly negative for any indication of a right shin condition. The medical evidence of record is extensive covering the period from 2008 to 2016. Generally, the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not, by itself, constitute substantive negative evidence to be weighed against a claim. Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir. 2006). Here, however, the absence of a diagnosis makes it more likely than not that the Veteran does not have a chronic disability of the right shin. The Veteran's contacts with VA have been numerous including contacts involving orthopedic complaints referable to the joints but not related to the right shin, and at no time has there been a diagnosis of a right shin disorder. Thus, there is no medical evidence of a current disability and no credible lay evidence of persistent or recurrent symptoms of a disability. Moreover, a symptom without a diagnosed or identifiable underlying malady or disorder, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (dismissed in part and vacated in part on other grounds by Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001)). In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claim for service connection. See Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer, supra. 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). Accordingly, service connection for a right shin condition is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis. See 38 C.F.R. § 3.303; see Gilpin and Brammer, both supra. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim of entitlement to service connection for a right shin condition, that doctrine does not apply. 38 U.S.C.A. § 5107(b). The claim of entitlement to service connection for a right shin condition is denied. ORDER Entitlement to service connection for a right shin disorder is denied. New and material evidence to reopen a claim of entitlement to service connection for a left foot disability has been received; the appeal is granted to this extent. New and material evidence to reopen a claim of entitlement to service connection for a right knee disability has been received; the appeal is granted to this extent. REMAND The Veteran seeks entitlement to service connection for a left foot disability and right knee disability. In the instant June 2010 claim, the Veteran contended that he injured his left foot while stationed in Okinawa, Japan. The Veteran reported that he hurt his left foot while training and was treated for this condition in service. The Veteran also contended that he injured his right knee while stationed in Twenty-nine Palms, California. The Veteran reported that he was treated for his right knee in service and continues to have difficulty walking. While the evidence shows that he was treated in service for complaints of left ankle strain and left knee pain, the evidence does not show any treatment concerning the left foot or right knee. The earliest treatment record for a left foot condition associated with the claims file appears to be dated in August 2008 from the August VA Medical Center which provided that the Veteran's "feet get hot and uncomfortable X 5 years." A February 2010 treatment record provided that the Veteran had pain in his feet for the past four days. A November 2012 record provided that the Veteran complains of left foot and knee pain with swelling in the past few months. Private treatment records from the Central Georgia Foot and Ankle, P.C. dated in February 2010 provided that the Veteran complained of left heel pain, burning sensation, and chronic dry scaly skin. The Veteran provided that he served in the military but denied any trauma to his feet. A physical examination showed focal pain to palpitation of the plantar/medial tubercle of the left heel. A radiographic evaluation of the left feet provided findings of large plantar and retro-calcaneal spur with arthritic changes through the medial column. The Veteran was provided an assessment of plantar fasciitis and calcaneal spur of the left foot. Post-service treatment records include a December 2011 emergency department record in which the Veteran complained of right knee pain for the last three days. A physical examination showed that the right knee had full range of motion with pain on the lateral ligament and head of the fibula. The Veteran denied any trauma, falls, or history of similar issues to the clinician. The clinician provided an assessment of fibular collateral bursitis. At the March 2016 Board hearing, the Veteran testified that he injured his left foot in service that has resulted in a secondary right knee condition because he began to favor his right side. The Veteran contends that he injured his left ankle and foot in service, but the examiner only diagnosed his left ankle condition and either missed or misdiagnosed his left foot condition. The Veteran also testified that he was discouraged from going to sick call while on active duty. The Board will afford the Veteran a VA examination and opinion that addresses his theory of entitlement. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo an examination by a qualified examiner to determine whether the Veteran has a current left foot disability and right knee disability that is due to service. The claims file must be thoroughly reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. The examiner should opine whether it is at least as likely as not (50 percent probability or more) that any left foot disability, including plantar fasciitis and calcaneal spur, and right knee disability, including fibular collateral bursitis, are etiologically related to any symptomatology noted in service. In so opining, please consider and address the Veteran's contention that his current left foot disability actually had its onset in service but was misdiagnosed as only a left ankle condition, and such left foot disability caused or aggravated his right knee disability because he began to favor his right side. A complete rationale for any opinion is required. 2. After the development requested above has been completed, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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). ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs