Citation Nr: 1722964 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 10-02 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating higher than 40 percent left eye scar residuals. 2. Entitlement to service connection for right hip disorder, status post-total hip arthroplasty (THA) and revision. 3. Entitlement to service connection for low back disorder. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for right knee disorder. 5. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for myopia (claimed as blurred vision). 6. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1976 to February 1977. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A February 2010 rating decision denied service connection for the right hip and denied a reopening of the right knee claim. A May 2012 rating decision granted an increased rating for the left eye scar residual by assigning a 30-percent rating for a disfiguring scar of the face, and assigning a 10-percent rating for a painful scar; and, determined that new and material evidence was not received to reopen the myopia claim. An August 2013 rating decision denied entitlement to service connection for a low back disorder. The Veteran perfected separate appeals of those determinations. The August 2013 rating decision denied entitlement to service connection for depression, and the Veteran appealed that decision. A July 2016 rating decision granted service connection with an initial 70-percent rating, effective in September 2012, and the Veteran appealed the initial rating. The AOJ has acknowledged the Veteran's Notice of Disagreement (NOD) and it appears action is being taken to issue a statement of the case, so that issue will not be included in the remand action below. In March 2014 correspondence (03/19/2014 Third Party Correspondence), the Veteran, through his representative, cancelled the hearing he requested in conjunction with his appeal. The request notwithstanding, a hearing was scheduled for April 2017, and the Veteran, through his representative, again cancelled the hearing and requested that the appeal be decided on the basis of the evidence of record, which the AOJ confirmed personally with the Veteran (07/20/2016 VA 27-0820). In a March 2017 correspondence, the Veteran's attorney reiterated the statement to cancel the hearing request and requested a determination on the record as it is. Following receipt of the Veteran's NOD with the left eye rating, in a March 29 2016 rating decision, the AOJ proposed to reduce the left eye rating from 40 to 10 percent due to clear and unmistakable error (CUE). An April 2016 letter informed the Veteran of his due process rights. See 38 C.F.R. § 3.105(e) (2016). The March 2016 Statement of the Case (SOC), however, styled the left eye rating as CUE rather than a straight-forward increased rating. There is no indication that the AOJ has rendered a final decision on the proposed reduction. See 08/24/2016 Deferred Rating.) As noted, the proposed reduction has not been adjudicated by the AOJ. Hence, the Board does not have jurisdiction over it, and the AOJ is to take appropriate action to complete this issue. The issues of entitlement to a higher rating left eye scar residuals and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The preponderance of the evidence shows that neither a right hip nor low back disorder had onset in active service, and that neither is causally connected to active service. 2. A November 2007 rating decision determined that new and material evidence was not received to reopen a claim of service connection for a right knee disorder. 3. The Veteran did not appeal the November 2007 rating decision, nor was additional evidence received on the issue within one year of the decision. 4. The evidence added to the record since the November 2007 rating decision does not trigger additional assistance to the Veteran or raise a reasonable possibility of proving the right knee issue. 5. A February 2006 rating decision denied entitlement to service connection myopia. 6. The Veteran did not appeal the February 2006 rating decision, nor was additional evidence received on the issue within one year of the decision. 7. The evidence added to the record since the February 2006 rating decision does not trigger additional assistance to the Veteran or raise a reasonable possibility of proving the myopia issue. CONCLUSIONS OF LAW 1. The requirements for entitlement to service connection for a right hip, status THA and revision, have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 1154, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a) (2016). 2. The requirements for entitlement to service connection for a low back disorder have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a), 3.309(a). 3. The November 2007 rating decision that denied entitlement to service connection for a right knee disorder is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. 4. New and material evidence to reopen a claim of entitlement to service connection for a right knee disorder has not been received, and the petition to reopen is denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. 5. The February 2006 rating decision that denied entitlement to service connection for myopia is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. 6. New and material evidence to reopen a claim of entitlement to service connection for myopia has not been received, and the petition to reopen is denied. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Prior to issuance of the February 2010 and August 2013 rating decisions, via a November 2011 letter, VA provided the Veteran with time- and content-compliant VCAA notice. The Veteran has not asserted any notice error or cited and specific prejudice as a result. In short, the Board finds that VA complied with the VCAA notice requirements. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA treatment records, relevant records of the Social Security Administration (SSA), and VA Compensation and Pension examination reports are in the claims file. In a number of his several written submissions, the Veteran asserted that he requested a VA examination of his right hip, but an examination was never conducted. There also was no examination conducted in conjunction with the low back claim. Nonetheless, the Board finds that one is not necessary to decide this issue, as discussed below. As concerns the Veteran's first assertion of his request for a hip examination was repeatedly ignored, the Veteran's earlier correspondence was not clear as to what condition he claimed, as he apparently used right hip and right knee interchangeably. When VA received an August 2003 VA Form 21-526 (08/15/2003) that addressed a reopening of the right knee claim, from the Veteran, the September 2003 VCAA notice letter specifically asked the Veteran if he was claiming a condition other than the right knee. (09/17/2003 VCAA letter). The Veteran did not respond to the letter. Hence, the rating decision styled the issue as a reopening of the right knee claim, "(claimed as a right leg injury)." (01/21/2004 Rating Decision-Narrative) Thus, the Veteran was not in fact ignored, as he failed to respond. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street."). VA will provide a medical examination or obtain a medical opinion where there is insufficient competent medical evidence to make a decision on the claim but: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; and, (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran's STRs are silent for complaints or treatment related to the right hip or low back, and there is no evidence that indicates that the currently diagnosed left hip or low back disorder may be connected to active service. Hence, despite the low threshold for triggering an examination, the Board finds that it was not triggered. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (explaining that something more than an appellant's conclusory, generalized statement is needed to trigger VA's duty to assist by providing a medical nexus examination); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As concerns the right knee claim, an examination was not conducted because the AOJ determined new and material evidence was not received to reopen the claim. Hence, that was not error and was in accordance with the pertinent regulation. See 38 C.F.R. § 3.159(c)(4)(iii). As such, the Board may address the merits of the appeal. Service Connection Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Service connection may 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). Arthritis is presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Discussion - right hip and low back Right hip X-rays dated in January 2009 were read as having shown avascular necrosis of the right femoral head with secondary arthritis, and degenerative changes at the left side of L4-S1. (04/07/2009 Medical Treatment-Government Facility, p. 4) Hence, the first requirement, a currently diagnosed disorder, for service connection is shown. The Board notes that the Veteran's claim was for back pain. As noted earlier, STRs are negative for any entries related to complaints, findings, or treatment for, right hip or low back disorder. On his January 1977 Report of Medical History for his examination at separation, the Veteran indicated a positive history for swollen or painful joint, leg cramps, and a bone or joint deformity. The examiner noted in Block 25, however, that all of the Veteran's positive responses were related to the right knee. The Veteran indicated a negative response for any history of recurrent back pain. The January 1977 Report of Medical Examination For Separation reflects that the Veteran's spine and other musculoskeletal system and lower extremities were assessed as normal. (04/28/2015 STR-Medical, pp. 6-9) A March 1977 VA examination report noted that the examiner found no objective evidence of an orthopedic condition. (03/15/1977 VA Examination, blocks #41 and #46) In light of this competent medical evidence, the Board finds that the evidence weighs against a finding that arthritis of either the right hip or lumbar spine manifested to at least a compensable degree within one year of separation from active service. A February 2009 VA outpatient entry reflects that the Veteran reported a 20-year history of right hip pain; that he injured his right hip in service, and that he was placed in a spica cast. On the other hand, he also reported that his symptoms started in the 1980s. (04/07/2009 Medical Treatment-Government Facility, pp. 11, 18) First, the STRs reflect that the Veteran was placed in a cast as part of the treatment for his right knee, not his hip. (STRs, p. 25) Second, the Veteran clearly dated the onset of his problems in the 1980s, which was several years after his active service. The Veteran has not articulated any basis in support of his claim that contradicts or disputes these facts. In light of this, the Board finds the competent and credible evidence shows that the onset of these foregoing problems was in the 1980s. Hence, while there is evidence of currently diagnosed right hip and low back disorders, the Board finds that the preponderance of the evidence is against the claims on both a presumptive and direct basis. In sum, the preponderance of the evidence does not weigh in favor of a finding that arthritis did not manifest within one year of separation, and there is no evidence of a causal connection with active service. 38 C.F.R. §§ 3.303, 3.307(a), 3.309. As such, the benefit of the doubt does not apply. Background right knee & left eye issues The Veteran initially applied for VA compensation for a right knee left eye disorders in February 1977. The STRs note the Veteran's several complaints related to the right knee which he reported he injured when he fell during a run in basic training. As noted earlier, VA examiner in 1977 noted that physical examination of the right knee revealed no then current right knee disorder, as the knee was normal on clinical examination. (03/15/1977 VA Examination, pp. 3-4). An April 1977 rating decision determined that, while the right knee was in fact treated in active service, no right knee condition was shown on examination. The rating decision also noted that the bilateral tibial varus shown on examination was a developmental defect no subject to service connection. (04/20/1977 Rating Decision) An AOJ letter dated that same month notified the Veteran of the decision and of his rights to appeal. The Veteran did not appeal the rating decision, nor was additional evidence received on the issue within one year of the decision. Hence, it became final. 38 C.F.R. §§ 3.156, 20.302. In April 1980, the Veteran applied to reopen the right knee claim. He asserted that he had continued to have pain and discomfort of the knee. (04/23/1980 Correspondence) No additional medical evidence was received. An August 1980 deferred or confirmed rating decision (08/15/1980 Deferred Rating) reflects that the Veteran was to be informed that new and material evidence was needed to reopen the claim. There is no indication in the claims file that a letter to that effect was in fact this determination was sent to the Veteran. Thus, this petition remained pending until, as discussed below, a January 2004 rating decision adjudicated the issue. Thereafter, in August 2003, the Veteran again applied to reopen the right knee claim. As noted earlier, the Veteran did not respond to the AOJ's request to clarify if he was claiming a disorder other than the right knee. Subsequently, a January 2004 rating decision determined that new and material evidence was not received to reopen the right knee claim. An AOJ letter dated that same month notified the Veteran of the decision and of his appellate rights. (01/23/2004 Notification) The Veteran did not appeal the decision. Instead, he again petitioned to reopen the right knee issue just beyond the one-year timeframe to appeal the January 2004 rating decision had expired. (02/25/2005 VA 21-526). Hence, the January 2004 rating decision became final. Again, the Veteran asserted that his right leg continued to get worse, and that he had injured the right knee during basic training. In February 2005, the Veteran again applied to reopen the right knee claim, and he asserted that his left eye stayed swollen, and that he had blurred vision. (02/25/2005 VA 21-526). Eye examinations were arranged. The August 2005 scars examination report reflects that the Veteran reported that while wearing a cast on his right knee, he was standing in formation when he lost his balance and fell. He struck his left eye on a rifle butt when he fell. The resultant laceration was sutured. He reported that there were no issues for several years afterwards, but some developed over time. The Veteran complained of constant swelling in the medial upper lid which he believe caused his vision to blur, though the swelling did not actually obstruct his vision. Physical examination revealed the swelling at the left eye, but there was no impairment in the functioning of the eye. The examiner opined that the swelling was due to the in-service incident and referred the AOJ to the eye examination. (08/09/2005 VA Examination) The January 2006 eye examination report reflects that the Veteran complained of swelling of both eyes that was always there. Physical examination revealed medial dermatochalasis in both eyes, worse in the left eye, with possible component of prolapse of the superomedial orbital fat. Visual acuity was correctable to 20/20 in both eyes. Slit lamp examination revealed no abnormalities. The examiner diagnosed dermatochalasis, left eye worse than right, status post-surgery of the left upper eyelid to repair an injury caused by the barrel of a rifle in 1976; and, myopia. (01/17/2006 VA Examination) The February 2006 rating decision added the dermatochalasis to the pathology of the already-service-connected left eye scar. Additionally, the AOJ determined that the claimed blurred vision was due to myopia, which is a congenital defect for which service connection was not available. See 38 C.F.R. § 3.303(c). The right knee claim was denied due to non-receipt of new and material evidence. (02/21/2006 Rating Decision). A March 2006 AOJ letter notified the Veteran of the decision and of his right to appeal. (03/02/2006 Notification) The Veteran did not appeal the decision, nor was additional evidence received on either issue within one year. Hence, the February 2006 rating decision became final. In April 2007, the Veteran again applied to reopen the right knee claim. The only evidence added to the claims file were general VA outpatient treatment records, none of which indicated any causal connectivity. A November 2007 rating decision determined that new and material evidence was not received to reopen the right knee claim. A December 2007 letter informed the Veteran of the decision, and he did not appeal. Neither was additional evidence received on the issue within one year. The November 2007 rating decision was the last final decision on the issue of whether new and material evidence was received to reopen the right knee claim. VA received the Veteran's current application to reopen the right knee claim in August 2009, and the left eye vision claim in August 2011. New and Material Evidence When a claim is disallowed and becomes final, the claim will not be reopened except as provided by applicable regulation. If new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means more than evidence that has not previously been included in the claims folder. The evidence, even if new, must be material, in that it is evidence not previously of record that relates to an unestablished fact necessary to establish the claim, and which by itself or in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low threshold." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Discussion The evidence added to the claims file since the November 2007 rating decision includes the Veteran's outpatient treatment records and recurrent applications to reopen the claim. The outpatient records note the Veteran's general report that he injured the right knee in service. The Veteran's applications to reopen asserted only that he injured the right knee in service. As discussed earlier, this information was a previously known fact as stated by the Veteran and recorded in his service treatment records. In light of this, the Board finds such evidence is redundant. Additionally, the evidence added to the record since 2007 includes the Veteran's reports of his right knee symptoms. While this evidence is new in the sense that it was not before the rating board in November 2007, it is not material because it does not contain any evidence of an indication or association any right knee disorder with his active service. See Morton v. Principi, 3 Vet. App. 508, 509 (1992) (per curiam) (holding that where a veteran is attempting to reopen a previously denied claim and there is a question of nexus, medical records describing a current condition are not material to the issue of whether a veteran's disability is to be service connected). The element of nexus was not established in prior final rating decisions, to include the November 2007 one, and the evidence added to the record does not go to such element nor does it trigger VA's duty to assist. As concerns the left eye, no evidence has been added to the file that might tend to show a decrease in visual acuity due to a cause other than refractive error which, as determined in the February 2006 rating, is not subject to service connection. See 38 C.F.R. § 3.303(c). Additionally, the evidence does not indicate any disorder superimposed upon the myopia. In light of these factors, the Board finds that new and material evidence to reopen the right knee or myopia claim has not been received. 38 C.F.R. § 3.156. In reaching this decision on the right hip and low back issues, the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against those claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). The Board also considered the doctrine in reaching this decision on the application to reopen the right knee and left eye claims. The Veteran, however, did not carry his burden of showing new and material evidence. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). ORDER Service connection for right hip disorder is denied. Service connection for low back disorder is denied. New and material evidence to reopen a claim for entitlement to service connection for right knee disorder has not been received; the petition to reopen is denied. New and material evidence to reopen a claim for entitlement to service connection for myopia has not been received; the petition to reopen is denied. REMAND The Board notes that the March 2016 statement of the case address whether the assignment of a 40 percent evaluation for scar, left upper eyelid with dermatochalasis, effective August 22, 2011 was clearly and unmistakably erroneous. It indicated it was based off of the February 2013 notice of disagreement, which disagreed with the rating assigned for the eye. The Board finds that the March 2016 statement of the case did not address increased rating issue for the left eye. As such, the Board finds that a remand for a statement of the case on the increased rating issue is necessary. 38 C.F.R. § 19.9(c) (codifying Manlincon v. West, 12 Vet. App. 238 (1999)). As noted in the Introduction, whether the AOJ determines that the left eye rating should be reduced will be an integral part of the Veteran's increased rating for the left eye. Hence, that issue needs to be resolved as noted. Additionally, evidence submitted by the Veteran raises the issue of a TDIU. See, e.g., September 2016 Statement by S.G.B. Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to an increase rating for scar, left upper eyelid with dermatochalasis [The percentage should be determined after action regarding the reduction/CUE matter is finalized. The Board notes that the proposed reduction is intertwined with the increased rating issue regarding the left eye]. If, and only if, the Veteran perfects an appeal of the issue, certify it to the Board for completion of the appeal of the left eye rating. In this statement of the case, the AOJ should also determine if the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs