Citation Nr: 1630865 Decision Date: 08/03/16 Archive Date: 08/11/16 DOCKET NO. 14-24 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for a right hip injury. 2. Entitlement to service connection for a right hip injury. 3. Entitlement to service connection for a right lower extremity nerve condition. 4. Entitlement to service connection for an eye injury condition. 5. Entitlement to service connection for deterioration of the gums. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD A. Roggenkamp, Associate Counsel INTRODUCTION The Veteran had active service from August 1993 to February 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issues of entitlement to a right hip condition (on the merits) and right lower extremity nerve condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed May 2004 RO decision, service connection for a right hip injury was denied. 2. New evidence received since the May 2004 decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim of service connection for a right hip injury. 3. Deterioration of the gums is not a disability for VA purposes. 4. An eye injury condition is not shown. CONCLUSIONS OF LAW 1. The May 2004 RO decision denying service connection for a right hip injury is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2015). 2. New and material evidence has been received since the RO's May 2004 decision, and the claim of service connection for a right hip injury is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. Service connection for deterioration of the gums is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 4. The criteria for service connection for an eye injury condition have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). Prior to initial adjudication, a letter dated in February 2013 satisfied the duty to notify provisions with regard to the Veteran's claim. The Veteran's available service treatment records, VA medical treatment records, service personnel records, and indicated private medical records relating to the Veteran's claimed disabilities have been obtained. Attempts to obtain more complete service treatment records for the Veteran resulted in no additional evidence. In a May 2004 rating decision, the RO found that all proper procedures were followed, all efforts to obtain the records were exhausted, and further efforts would be futile; therefore, the RO found that the records were unavailable. VA examinations adequate for adjudication purposes were provided to the Veteran in connection with her claims for an eye injury condition and deterioration of the gums. The examinations are adequate because they were based upon consideration of the Veteran's pertinent medical history, her lay assertions and current complaints, and because they describe her gum condition in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. II. Claim to Reopen In a May 2004 rating decision, the RO denied the Veteran's claim for service connection for a right hip injury on the basis that there was no medical evidence of a current condition, or an indication that the claimed condition was due to service. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the May 2004 rating decision became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2015). The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C.A. § 7104(b) (West 2014); King v. Shinseki, 23 Vet. App. 464 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C.A. § 5108 (2015). 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). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Nerve conduction studies and other medical evidence from P.S.S.M., M.D., received in December 2010, provide evidence of a current hip condition. This evidence is new, because it was not before the RO when deciding the May 2004 decision, and it is material, because it relates to the unestablished fact of a current condition, which is necessary to substantiate the Veteran's claim. Therefore, this evidence is sufficient to reopen the Veteran's claim. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (2014); 38 C.F.R. § 3.303 (2015). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2015); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Deterioration of Gums Deterioration of the gums is not considered a disability for VA compensation purposes. See 38 C.F.R. §§ 4.1, 4.10 (2015). For VA compensation purposes, treatable carious teeth, replaceable missing teeth, dental alveolar abscesses, and periodontal disease are not considered disabilities. See 38 C.F.R. § 3.381(b) (2015). The Veteran's April 2013 VA examination showed no evidence of a dental condition that is compensable under VA regulations. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of a disability for VA purposes, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for deterioration of the gums is therefore denied. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the Veteran's gum deterioration is not a disability for VA purposes, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Eye Injury Condition The Veteran asserts that she has an eye injury condition due to service, to include symptoms of itching and tearing. The available service treatment records do not reflect treatment for an eye injury or condition. The Veteran's VA and private treatment records also do not show any current eye disease or condition. At the Veteran's April 2013 VA examination, the VA examiner opined that the Veteran did not have an ocular pathology or chronic eye condition, and that her symptoms could be attributed to a mild allergy. The Veteran has not contended that she has an allergy disability due to service. Considering the history of this appeal and the evidence of record, the Board finds that the disability is appellate status does not encompass an allergy disability. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. Without competent evidence of a diagnosis of an eye injury or condition, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board has considered the Veteran's general contention that she has this claimed disability, but she is not competent to attest to a diagnosis as this requires medical expertise. The Veteran's general contentions are outweighed by the lack of diagnosis or complaints reflected in the medical records. Absent a showing of an eye injury or condition, service connection for this disability cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for an eye injury condition must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER New and material evidence has been presented to reopen the claim of service connection for a right hip injury. Service connection for deterioration of the gums is denied. Service connection for an eye injury condition is denied. REMAND The Veteran is pursuing a claim for service connection for a right hip injury and a right lower extremity nerve condition. In May 2004, the RO formally found that the Veteran's service treatment records were unavailable. Where service treatment records have been destroyed or are unavailable, VA has a heightened duty to assist the Veteran and the Board has a heightened duty to provide and explanation of reasons or bases for its findings. See O'Hare vs. Derwinski, 1 Vet. App. 365 (1991). The Veteran reported that she had physical therapy in service for her hip, and was originally diagnosed with right hip bursitis. Though the Veteran's full service treatment records are unavailable, VA treatment records from 2001, shortly after her release from service, show a diagnosis of hip bursitis. The Veteran underwent a VA examination in support of those contentions in April 2013. The examiner opined that the Veteran's right hip injury and right lower extremity nerve condition were less likely than not related to service; as rationale, however, the examiner relied almost exclusively on the fact that there were no records from service indicating that the Veteran had hip pain. The rationale provided by the VA examiner at the April 2013 examination is inadequate, because it relies almost exclusively on lack of information-service medical records reflecting a right hip condition in service-that is absent from the record due to its unavailability, and through no fault of the Veteran. An addendum opinion is necessary in order to account for the heightened duty placed on the VA due to the missing record. Also, update VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Update VA treatment records. 2. Thereafter, the RO must provide the Veteran's claims file to the examiner who performed the April 2013 VA examiner, or, if they are unavailable, to a new examiner who is qualified to give an opinion on the Veteran's right hip injury and right lower extremity nerve condition, so new opinions may be provided. A new examination is only required if deemed necessary by the examiner. The entire claims file (both the paper claims file and any relevant medical records contained in Virtual VA and/or VBMS) and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a) If a new examination is conducted, the examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b) The examiner is instructed that the Veteran's complete service treatment records were determined to be unavailable, and is reminded that, because of the unavailability, VA has a heightened duty to assist the Veteran. Additionally, although an independent review of the claims file is required, the Board calls the examiner's attention to the 2001 VA treatment records indicating a diagnosis of right hip bursitis. c) The examiner must provide an opinion including specific findings as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right hip injury and right lower extremity nerve condition each began during active service or are related to any incident of service or, if arthritis is diagnosed, whether the arthritis began within one year of separation from active duty. d) As part of the opinion, the examiner must address the Veteran's lay statements regarding onset in his or her rationale, as well as any relevant statements from treatment records. e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After the above has been completed, the RO must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran 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). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs