Citation Nr: 1756767 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-02 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right leg condition, claimed as a right leg severely crippling condition. 2. Entitlement to a back condition, claimed as scoliosis, leading to ruptured discs and laminectomy. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral knee condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1953 to January 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. The Veteran does not have a current right leg disability that was incurred in or aggravated by his time in service. 2. The Veteran's currently diagnosed back condition was not incurred in or aggravated by his time in service. 3. Evidence received since the February 2009 rating decision is new but does not relate to any unsubstantiated fact in the previously denied claim and does not, by itself or in connection with the evidence previously assembled, raise a reasonable possibility of substantiating the claim for service connection for bilateral knee condition. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right leg condition have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2016). 2. The criteria for establishing service connection for a back condition have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303 (2016). 3. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a bilateral knee condition. 38 U.S.C.A. § 5108, (West 2014); 38 C.F.R. § 3.156 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist and to Notify Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. General Legal Criteria In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007): Charles v. Principi, 16 Vet. App. 370 (2002). Laypersons have been found not to be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). III. Service Connection Claims A. Legal Criteria Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A current disability must be present for a valid service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1995). The Board is required to determine whether the Veteran has or had a disability at any time during the pendency of the appeal. If it is established that the Veteran had a disability at any time during the appeal, the Veteran will have satisfied the requirement of having a current disability. McLain v. Nicholson, 21 Vet. App. 319 (2007). B. Right Leg Condition To establish service connection, the threshold question is whether the Veteran has, or has had at any time during the appeal period, a current disability. The Veteran has stated multiple times that he suffers from a right leg condition. In his claim, the Veteran stated that he had trauma to his right leg from a fall. Most of the Veteran's medical records are free from mention that the Veteran suffers from any type of right leg trauma. The Veteran was seen in November 1986 for his bilateral knee condition and the examiner noted the Veteran may have a right anterior tibial deviation due to his bilateral knee joint trauma. The rest of the Veteran's medical records are replete with evidence that the Veteran suffers from a right knee condition, but there is no evidence definitively diagnosing the Veteran with any other type of continuing right leg condition from an in-service fall. Even if the Board were to consider the November 1986 statement to be a current diagnosis of a right leg condition, there is no evidence that this leg condition was incurred during the Veteran's time in service. The Board has thoroughly reviewed the Veteran's in-service medical records. However, the Veteran's examinations while in service as well as the documentation of his visits to sick call are negative for mention of an in-service right leg condition. The Veteran has stated for years that he suffers from a right leg condition. Although the Veteran is competent to report on his symptoms per Layno v. Brown, 6 Vet. App. 465 (1994), he is a layperson who is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998). Therefore, the Veteran is competent to discuss his symptoms, but he is not competent to diagnose himself with a leg disability or to opine that the leg disability was related to his time in service. The more probative evidence is against finding that the Veteran has a current right leg disability. While one examiner noted the possibility of a right leg condition, there is no other evidence that the Veteran suffers from a right leg condition, distinct from his right knee condition. Without a current disability, the Veteran does not qualify for service connection. Additionally, even if the Veteran were to have a current diagnosis of a right leg condition, there is no evidence showing that it was incurred in service or aggravated by his time in service. The Board has considered the November 1986 examiner's opinion that said the Veteran may have a right leg condition due to his bilateral knees and the Veteran's multiple statements saying he has a right leg condition that is proximately due to his time in service. However, the diagnosis was never confirmed. Additionally, decades of medical records are free from treatment of such a condition and the Veteran's STRs are free from mention of an in-service incurrence or aggravation of a right leg condition. Because the more probative evidence is against the Veteran being diagnosed with a current right leg condition and against any such leg condition incurring in service, service connection is not warranted and the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b) (West 2014); 38 C.F.R. §3.102 (2016), Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). C. Back Condition The Veteran has a current diagnosis of a back injury. The Veteran was seen for a small dural tear in his back in 1997 and a June 2007 examiner noted the Veteran's back diagnosis with degenerative disc changes of the lumbar spine. The next question is whether the Veteran's current back condition was incurred in or aggravated by his time in service. The Veteran was seen for his back condition in June 2007. The examiner noted the Veteran's history of a small dural tear in 1997 and the Veteran's history of generative disc disease and a decompressive lumbar laminectomy. However, the examiner did not state that the Veteran's current back condition was incurred in or aggravated by service. The Veteran's STRs are negative for any mention of a disc or back problem while in service. The Veteran's entrance examination was negative for any mention of a pre-existing back condition and the Veteran's exit examination was negative for any mention of a back condition that was incurred in service. The more probative evidence is against finding that the Veteran's current back condition was incurred in or aggravated by his time in service. The Board has considered the Veteran's statements regarding his back condition and how it was incurred in service. The Board notes that the Veteran has stated several times that his back condition is severe and the Board acknowledges that the Veteran's back condition most likely does cause him significant pain and distress. However, the severity of the Veteran's back condition does not help to establish a claim of service connection. The Veteran has stated on multiple occasions that his back condition was incurred in service and that the examinations were inadequate. The Board finds that the record includes no confirmation of the Veteran's statements that he incurred his back condition while in service. Notably, in a medical visit in June 2007, the Veteran stated that he has had continued pain in his low back since the repair of a small dural tear in 1997. Additionally, the Board finds that the examiners were thorough in their examinations, noting the Veteran's symptoms and providing detailed explanations of their findings. Because the more probative evidence is against finding that the Veteran's current back condition was incurred in or aggravated by service, service connection is not warranted and the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b) (West 2014); 38 C.F.R. §3.102 (2016), Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). IV. Whether new and material evidence has been submitted to reopen a claim for service connection for a bilateral knee condition. A. Legal Criteria Generally, a claim which has been denied in a final unappalled rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7105(c), (d)(3) (West 2014); 38 C.F.R. § 20.1103 (2016). If "new and material" evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). New evidence means evidence not previously submitted to agency decision makers that is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a) (2016). Materiality has two components: first, that the new evidence pertains to the reason for the prior final denial; and second, that the new evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. B. Analysis In May 1994, the Houston, Texas RO denied entitlement to service connection for a bilateral knee condition because the evidence submitted was considered cumulative of evidence previously submitted. The Veteran did not appeal and the decision became final in May 1995. 38 U.S.C.A. § 7105 (West 2014). In August 2008, the Veteran filed a claim to reopen his service connection claim for his bilateral knee condition. In February 2009, the RO denied reopening of this claim because no new and material evidence had been submitted. The evidence associated with the file prior to May 1994 included: The Veteran's military personnel records, the Veteran's service treatment records (STRs), medical treatment records, including ones from Portugal, Germany, Spain, New York, and California, and VA examinations. The evidence also included multiple statements from the Veteran regarding his bilateral knee condition, including several statements about how he was mistreated by VA examiners and how their negligence lead to the aggravation of his knee condition, statements about his illegal conscription into the military, birth certificates, divorce decrees, statements from representatives, Congressional correspondence, and hearing testimony given in October 1985. Since the final disallowance of the claim for his bilateral knee condition, evidence that has become associated with the file includes: medical treatment records from California, Georgia, Florida, and Boliva and Spain, STRs, Congressional correspondence, statements from the Veteran regarding his bilateral knee condition, more military personnel records, name change documentation, birth certificates, and a marriage license. The Veteran's medical records from California and Georgia submitted after May 1994 were not associated with the file prior to May 1994. However, they are redundant of the evidence submitted prior to May 1994. The medical records show that the Veteran continued to have pain and trouble with his bilateral knee condition. However, these records do not show that the Veteran's bilateral knee condition was incurred in or aggravated by service or offer any information that would raise the possibility of substantiating the claim. The medical records from Florida are new in that they are not redundant or cumulative of the previous medical records. However, they are not material as they do not relate to the Veteran's bilateral knee condition and whether it was incurred in or aggravated by his time in service. The remainder of the Veteran's medical records submitted after May 1994 are cumulative of the evidence of his bilateral knee condition that was previously submitted. These records continue to show that the Veteran seeks care for his bilateral knee condition. While the Veteran's medical records submitted after May 1994 show that he is disabled and has to seek continuous medical care for his bilateral knee condition, the medical records do not show that the Veteran's bilateral knee condition was incurred in or aggravated by service. Similarly, the Veteran's STRs that were submitted after May 1994 are not new as they are redundant and cumulative of evidence previously submitted that show that even though the Veteran sought treatment for his knees while in service, the Veteran's right knee was injured prior to his military service. The statements submitted by the Veteran since May 1994 are not new as they continue to reiterate the Veteran's contentions. In the statements submitted since May 1994, the Veteran states again that he is totally disabled due to his bilateral knee condition and that he suffers because of it. The Veteran reiterates that it is inaccurate that his condition pre-existed service and that he is entitled to be service connected for his bilateral knee condition. Because none of the evidence submitted from the previous final denial is both new and material, the Veteran's claim for entitlement to service connection for a bilateral knee condition must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for a right leg condition, claimed as a right leg severely crippling condition is denied. Service connection for a back condition, claimed as scoliosis, leading to ruptured discs and laminectomy is denied. New and material evidence having not been received, the application to reopen the previously denied claim of entitlement to service connection for a bilateral knee condition is denied. ____________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs