Citation Nr: 1645143 Decision Date: 12/01/16 Archive Date: 12/19/16 DOCKET NO. 10-35 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right lower extremity neurological disability, to include as an aspect of service-connected lumbar spine disability, to include as secondary to service-connected right knee disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to left knee disability, claimed as bilateral leg disability, to include as secondary to service-connected right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from October 1972 to May 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri, on behalf of the Regional Office in Little Rock, Arkansas (RO). The appeal was since transferred to the jurisdiction of the Phoenix, Arizona RO. The appellant was afforded a personal hearing in May 2011 before a Veteran's Law Judge. The transcript is of record. As that Veteran's Law Judge is no longer available to participate in the decision, the appellant was afforded an opportunity to have the appeal heard before a new Veteran's Law Judge and a notification of this was sent to the appellant in April 2016 and July 2016. As the Veteran responded that he did not desire a new hearing in a signed August 2016 letter, the Board finds that the Veteran's rights to an additional hearing have been sufficiently waived, and it shall proceed with adjudication of the Veteran's claims accordingly. These claims were previously before the Board in November 2013, at which time they were remanded for additional development. That development having been completed, these claims are once again before the Board. The Board notes that the claim for entitlement to service connection for left lower extremity neurological disability, other than left S1 nerve root irritation/impingement, to include as an aspect of service-connected lumbar spine disability, to include as secondary to service-connected right knee disability, was previously before it in November 2013 and remanded. However, while on remand, the RO granted service connection for a left lower extremity neurological disability to include as an aspect of service-connected lumbar spine disability, with an evaluation of 0 percent effective April 8, 2009. There is no indication in the claims file that the Veteran has described a separate and distinct neurologic disability affecting his left lower extremity other than what was granted in the February 2014 rating decision. Therefore, the Board finds that this decision represents a full grant of benefits sought and that the matter with regard to this claim has been resolved. Therefore, no further discussion of this claim shall ensue. FINDINGS OF FACT 1. In August 2011, prior to the promulgation of a decision in the appeal, the RO granted the Veteran service connection for a right lower extremity neurological disability that was diagnosed as right lower extremity radiculopathy. There is no indication in the claims file that the Veteran has described or been diagnosed as having a separate and distinct neurologic disability affecting his right lower extremity. 2. A rating decision in May 1985 denied service connection for a disability of the left knee. The Veteran was notified of this decision and did not file a notice of disagreement (NOD) within one year or submit new and material evidence within that year. 3. The Veteran filed a claim to reopen for service connection for a disability of the left knee in September 1990. A rating decision in March 1991 denied service connection for a disability of the left knee. The Veteran was notified of this decision and did not file a NOD or submit new and material evidence within one year. 4. The Veteran filed a claim to reopen for service connection for a disability of the left knee in June 2005. A rating decision in November 2005 denied reopening for service connection for a disability of the left knee. The Veteran initiated a timely appeal and the claim was subsequently reopened, but denied on the merits by the Board in October 2008. The Veteran did not initiate an appeal of that decision, and it became final. 5. The Veteran filed a new claim for a bilateral leg condition in June 2009. The Board, in its November 2013 Remand, characterized the issue as a claim to reopen, thus requiring a showing of new and material evidence since the last final decision of record, which was the October 2008 Board decision. 6. Evidence added to the file since the October 2008 Board decision, concerning the issue of entitlement to service connection for a disability of the left knee is found to be cumulative of evidence already of record and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The appeal concerning entitlement to service connection for a right lower extremity neurological disability is dismissed, as service connection for this condition was already granted and there remains no justiciable case or controversy with respect to this claim. 38 U.S.C.A. § 7105 (West 2014). 2. New and material evidence has not been received since the Board's October 2008 decision, which denied entitlement to service connection for a left knee disability; the claim for entitlement to service connection for a left knee disability is not reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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). Proper VCAA notice must inform the claimant of any information and medical or lay evidence not of record that (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103 (a) (West 2014); 38 C.F.R. § 3.159 (b)(1) (2015). This notice must be provided prior to the initial adjudication of a claim by the RO. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a corrective letter dated in December 2013 advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. The letter also advised the Veteran of elements required to reopen a previously-denied claim and the specific reasons why his previous claims of service connection for a left knee disability had been denied. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice letter also provided notice of the evidence and information necessary to establish a disability rating and effective date in accordance with the court's ruling in Dingess. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining the relevant records pertinent to matter herein decided. The pertinent evidence associated with the claims consists of the service treatment records, private treatment records, VA treatment records, reports of private and VA examinations, and the Veteran's statements. Here, it appears that VA has adequately discharged its duty to locate alternate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist the Veteran in obtaining the relevant records. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim decided herein. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding VLJ identified the issues to the Veteran, noted the bases for the RO's denial, and indicated the evidence necessary to substantiate the claims. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103 (c)(2), nor has he identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. A review of the claims file also shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Legal Criteria Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108 , 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. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). 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. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Right Lower Extremity Service connection for the Veteran's claimed right lower extremity neurological disability was awarded by the RO in an August 2011 rating decision. As such, this claim is dismissed as a matter of law, as there remains no case or controversy; or dispute of fact or law, regarding this issue. 38 U.S.C.A. § 7105 (West 2014); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). The benefit sought on appeal was granted in full. Because service connection has been granted for the Veteran's claimed cervical spine disability, VA has no notice or duty to assist obligations with respect to this claim. Left Knee In February 1984, the Veteran submitted a claim of entitlement to service connection for a left knee disability. Specifically, the Veteran claimed that he underwent a medical evaluation at a military hospital in Wurzburg, Germany, that resulted in a diagnosis of a torn meniscus. Pursuant to this claim, the Veteran was provided a VA examination in October 1984, during which he complained of left knee clicking and pain. Clinical testing did not reveal definite pathology. This claim was ultimately denied in May 1985 due to the lack of evidence demonstrating a then current left knee diagnosis. In September 1990, the Veteran submitted a claim to reopen the issue of entitlement to service connection for left knee disability. Therein, he stated that he recently had a ganglion cyst surgically removed from his left knee. He asserted that his left knee disability was caused by compensating for his service-connected right knee disability. The Veteran was provided a VA examination in December 1990. During the examination, the Veteran reported that he underwent a surgical procedure on his right knee in 1983, after which he wore a knee brace until 1988. In 1988, he stated that he was instructed to discontinue use of the right knee brace. Thereafter, the Veteran claimed that he developed problems in his left knee. He then stated that he was evaluated at a private hospital in Wurzburg, Germany, that included an arthrogram and a meniscal repair associated with the removal of a fibroma with a pseudo bursa. A December 1990 radiological examination revealed minimal osteoarthritic changes. Ultimately, the diagnosis was status post meniscal repair, left knee, with removal of fibroma and pseudo bursa with chronic pain. In a March 1991 rating decision, the RO effectively reopened then denied the Veteran's claim. In June 2005, the Veteran submitted a claim to reopen the issue of entitlement to service connection for left knee disability, again asserting that it was due to compensating for his service-connected right knee disability. In support of this claim, the Veteran submitted July 1985 private treatment reports concerning his left knee. As these reports were written in German, the Board obtained translations. Although the examining doctor suspected a left knee meniscus tear, clinical evaluation could not confirm this. Further, radiological examination of the left knee revealed no significant ossuary modifications. These report demonstrated that the Veteran underwent arthroscopic surgery in July 1985 that revealed a hard, pea-sized tumor in the area of the lateral meniscus. This tumor was surgical removed, as was the base of the meniscus in the area of the tumor; the meniscus was surgically re-attached. The Veteran's post-operative course was described as being free of complications. Ultimately, through additional testing, the tumor was determined to be a fibroma with a pseudo bursa, not a ganglion cyst. After the RO denied reopening this claim in a November 2005 rating decision, the Veteran perfected an appeal. The Veteran was provided a VA examination in August 2006. The examiner opined that the Veteran's left knee disability was due to the "cyst" that was surgically removed and, thus, was not etiologically related to his active service or service-connected right knee disability. Based on magnetic resonance imaging results, the examiner also determined that the Veteran experienced pain in his left lower extremity associated with degenerative changes in his lumbosacral spine. The Veteran's claim was then reopened, but denied by the RO in a November 2006 statement of the case. In October 2008, the Board reopened, but denied the Veteran's claim. The Veteran did not submit any intent to appeal this decision and it became final. In June 2009, the Veteran submitted a statement wherein he reported experiencing "pins [and] needles" and shooting pain in his legs. The RO accepted this statement as a claim of entitlement to bilateral leg disability. The Veteran was provided two VA examinations in October 2009, one concerning his hips, the other concerning peripheral nerves. At the conclusion of the hips VA examination, the assessment was bilateral hip arthralgia without diagnosis and right peroneal nerve entrapment syndrome. Further, the examiner stated that clinical testing confirmed that no radiculopathy was present. The peripheral nerve VA examination demonstrated the presence of right peroneal nerve entrapment and revealed the presence of left lower extremity neurological symptoms . The examiner again determined that there was no clear evidence of radiculopathy. During a May 2011 hearing with a Veterans Law Judge, the Veteran clarified that the alleged disability/disabilities for which he was seeking service connection. Specifically, the Veteran stated that he was primarily seeking service connection for left knee disability, but that he was also interested in seeking service connection for neurological symptoms/disabilities in his right and left leg. As such, the Board characterized the Veteran's issue as that of a reopened claim, thus requiring a showing of new and material evidence since the last final decision of record, which was the October 2008 Board decision. The October 2008 Board decision denied the Veteran's claim on the basis that the probative medical evidence of record did not support a showing of a nexus to military service or to the Veteran's service-connected disabilities. Thus, any new and material evidence submitted must be indicative of a potential nexus. Since the October 2008 Board decision was finalized, the Veteran has submitted additional statements, to include testimony at the May 2011 Board hearing, in which he re-alleged the same contentions as in previous claims to the effect that his left knee disability was caused or aggravated by treatment of his service-connected right knee disability and current treatment records with showings of treatment for the left knee, but no etiological relationship provided to the right knee, lumbar spine, or military service. These statements and records are new because they had not been previously considered. However, they are not found to be material because they are merely cumulative of the same evidence that was in existence at the time of the October 2008 Board decision, namely that the Veteran alleged a relationship of his left knee disability to his right knee, lumbar spine, or military service that was not supported by the probative medical evidence of record. Consequently, the Board finds that new and material evidence has not been received since the October 2008 final Board decision and reopening the claim for service connection for a left knee disability is not warranted. ORDER Entitlement to service connection for right lower extremity neurological disability, to include as an aspect of service-connected lumbar spine disability, to include as secondary to service-connected right knee disability, is dismissed. New and material evidence having not been received, the previously denied claim for entitlement to service connection for a left knee disability is not reopened. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs