Citation Nr: 1802068 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-23 830 ) 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 of service connection for a right knee disorder. 2. Whether new and material evidence has been received to reopen a claim of service connection for a thyroid disorder, to include as due to herbicide agent exposure. 3. Entitlement to service connection for a renal mass, to include as due to herbicide agent exposure and as secondary to service-connected diabetic nephropathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from November 1965 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the VA Regional Office (RO) in Columbia, South Carolina. In October 2017, the Veteran testified at a videoconference hearing before the undersigned. As discussed below, the Board is reopening the issue of service connection for a right knee disorder. That underlying issue, as well as service connection for a renal mass, being remanded 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 a May 2007 rating decision, the RO denied service connection for a right knee disorder on the basis that there was no evidence showing that it was related to his service. 2. Evidence received after the May 2007 denial relates to unestablished facts necessary to substantiate that claim of service connection and raises a reasonable possibility of substantiating that underlying claim. 3. In a June 2008 rating decision, the RO denied service connection for hyperthyroidism on the basis that there was no evidence showing that it was related to his service. 4. Evidence received after the June 2008 denial relates to unestablished facts necessary to substantiate that claim of service connection and raises a reasonable possibility of substantiating that underlying claim. 5. The Veteran's current thyroid disorder is not shown to be etiologically related to service. CONCLUSIONS OF LAW 1. The RO's May 2007 denial of service connection for a right knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2017). 2. Evidence received since the final May 2007 rating decision is new and material. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The RO's June 2008 denial of service connection for hyperthyroidism is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2017). 4. Evidence received since the final June 2008 rating decision is new and material. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for a thyroid disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to notify and assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). II. New and material evidence claims A. Applicable laws and regulations A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the Statement of the Case (SOC). 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 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. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). B. Right knee disorder Service connection for a right knee disorder was initially denied in May 2007 because the evidence did not show that it was related to his military service. After receiving notice of that decision, the Veteran did not appeal. A May 2010 rating decision continued the denial because the evidence submitted was not new and material. Evidence was received within one year of this rating decision; consequently, the Board concludes that the May 2010 decision is not final and the last final decision is from 2007. Relevant evidence of record at the time of the May 2007 rating decision consisted of the Veteran's service treatment records (STRs) and an April 2007 VA examination. His STRs showed that he had right knee pain in December 1966; the Veteran reported ripping a tendon in 1960 requiring surgical repair. The 2007 examiner diagnosed the Veteran with resolved ligament tear and degenerative joint disease. They opined that the Veteran's current knee disabilities were almost certainly related to the injury he sustained prior to service. As the claims folder contained no competent evidence of an etiological relationship between a current right knee disorder and the Veteran's military service, the RO denied service connection. The Veteran did not appeal the RO's 2007 decision and that denial became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. In reaching the conclusion that that decision is final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). Here, no additional evidence pertinent to the issue of service connection for a right knee disorder was received prior to the expiration of the appeal period. The May 2007 rating decision is thus final. The relevant evidence received since the denial consists of post-service medical records, a June 2012 private opinion, and the Veteran's testimony at his October 2017 hearing. An April 2011 record shows that the Veteran's knee pain started in service, while the June 2012 physician opined that the Veteran's osteoarthritis was due to the rigors of his military involvement. He described injuring his knee in service during his hearing. The evidence of record obtained since the May 2007 rating decision includes reports of an in-service injury and of the onset of his pain being during service, as well as a positive medical opinion. This newly received evidence, when considering evidence previous of record, relates to unestablished facts necessary to reopen the previously denied claim of service connection for a right knee disorder. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. The reopened claim will be further addressed in the REMAND section of this decision. C. Thyroid disorder Service connection for hyperthyroidism was denied in June 2008 because the evidence did not show that it was related to his military service. After receiving notice of that decision, the Veteran did not appeal. Relevant evidence of record at the time of the June 2008 rating decision consisted of the Veteran's STRs and post-service medical records. His STRs showed no thyroid treatment. Post-service records showed that the Veteran had a thyroidectomy in December 2007 with post-surgical hypothyroidism. None of his records include any opinion regarding the etiology of a current thyroid disorder. As the claims folder contained no competent evidence of an etiological relationship between a current thyroid disorder and the Veteran's military service, the RO denied service connection. The Veteran did not appeal the RO's 2008 decision, and that denial became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. In reaching the conclusion that that decision is final, the Board is cognizant of the holding of the Federal Circuit in Bond, supra. In this case, no additional evidence pertinent to the issue of service connection for a thyroid disorder was received prior to the expiration of the appeal period. The June 2008 rating decision is thus final. The relevant evidence received since the denial consists of post-service medical records and the Veteran's testimony at his October 2017 hearing. The Veteran provided additional information during his hearing regarding a reported in-service event, injury or disease as he described exposures to contaminated water and herbicide agents. The evidence of record obtained since the June 2008 rating decision includes detailed reports of in-service exposures. This newly received evidence, when considering evidence previous of record, relates to unestablished facts necessary to reopen the previously denied claim of service connection for a thyroid disorder. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. As the RO adjudicated this claim on the merits, the Veteran is not prejudiced by the Board's adjudication below. III. Service connection claim A. Applicable laws and regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). If a Veteran was exposed to an "herbicide agent," such as Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam from January 9, 1962, to May 7, 1975, then, absent affirmative evidence to the contrary, certain diseases will be presumptively service connected even if there is no record of the disease in service. 38 U.S.C. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.307(a)(6), (d), 3.309(e). A claimant can establish service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). B. Thyroid disorder In this case, the Board acknowledges the diagnosis of a current thyroid disorder; abnormal thyroid function was first shown in 2007 and the Veteran had a thyroidectomy in December 2007 with post-surgical hypothyroidism. The Board has reviewed the STRs and notes no thyroid treatment. No thyroid disorder was shown in the October 1968 separation examination and physical. Given the above, the remaining question for the Board is whether there is an etiological relationship, or nexus, between the current disability and service, specifically the in-service exposure to herbicide agents. The Veteran's DD Form 214 confirms his service in the Republic of Vietnam; accordingly, exposure to herbicide agents is conceded. The Veteran described exposure to contaminants during his October 2017 hearing. There is no medical evidence directly addressing the question of a nexus, and the Veteran has not reported that any medical professional has related a thyroid disorder to his military service, including his exposure to herbicide agents. Thyroid disorders are not diseases presumptively associated with herbicide agents. 38 C.F.R. § 3.309(e). As to the Veteran's own contentions, he is competent to observe lay symptoms but does not have the training or credentials to provide a competent opinion as to a diagnosis or the onset date of such diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). His lay contentions therefore lack probative value. Absent any competent evidence supporting the Veteran's claim, there is no basis for remanding this claim for a VA examination and etiology opinion, as there exists no reasonable possibility that such examination and opinion could be supportive of the claim. 38 C.F.R. § 3.159(c)(4). In summary, the preponderance of the evidence is against the claim for service connection for a thyroid disorder, and the claim must be denied. 38 U.S.C. § 5107(b). ORDER New and material evidence having been received, the claim for service connection for a right knee disorder is reopened. New and material evidence having been received, the claim for service connection for a thyroid disorder is reopened. Entitlement to service connection for a thyroid disorder, to include as due to herbicide agent exposure, is denied. REMAND A remand is necessary for the issues of service connection for a right knee disorder and renal mass. With regards to the Veteran's right knee, his November 1965 enlistment examination did not show any right knee disorder; however, the Veteran reported having a "trick" or locked knee in his report of medical history. A knee operation in 1961-1962 was reported. The Veteran received treatment for his right knee in December 1966; he reported ripping a tendon in 1960 with surgical repair. Even with the Veteran's report of knee problems before service, in light of the enlistment examination not reflecting a diagnosed disorder, the Board is unable to conclude that the presumption of soundness has been rebutted. An April 2016 VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. However, the Board finds the rationale to be lacking. As such, the Board concludes that a remand to obtain an addendum medical opinion is necessary. As for his renal mass, the Board observes that the Veteran is currently service connected for diabetic nephropathy. The Veteran asserted that his renal mass caused problems with urination during his hearing. Based on this testimony, it is unclear to the Board whether his renal mass may be related to his service-connected nephropathy. Prior to rendering a decision, the Board finds that a VA examination would be beneficial to address this issue. Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran a 38 C.F.R. § 3.159(b) notice letter addressing the Veteran's claims, with information as to the renal mass claim as a secondary service connection claim under 38 C.F.R. § 3.310. The Veteran should be allowed a reasonable period of time in which to respond. In accord with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran. 2. Obtain an addendum medical opinion from the April 2016 VA knee and lower leg conditions system examiner (or, if unavailable, from a medical professional with appropriate expertise) to determine the etiology of any diagnosed right knee disorder. The examiner is requested to review the record and offer opinions that address the following: (a) Is there clear and unmistakable evidence (obvious, manifest, and undebatable) that any currently diagnosed right knee disorder preexisted the Veteran's active service. (b) If so, state whether there is clear and unmistakable evidence that the preexisting right knee disorder WAS NOT aggravated (i.e., permanently worsened) during service; or whether, it is clear and unmistakable that any increase in service was due to the natural progress of the disorder. (c) As to any right knee disorder NOT found to clearly and unmistakably exist prior to the Veteran's service, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset in service or is related to the Veteran's military service. A complete rationale should be given for all opinions and conclusions expressed. The examiner should consider the November 1965 enlistment examination and report of medical history; the knee treatment in December 1966; the Veteran's reports of his knee pain beginning in service; and the June 2012 opinion from Dr. D.D. relating the Veteran's right knee disorder to his military service. 3. Accord the Veteran a VA renal conditions examination, with a medical professional of appropriate expertise who has reviewed the claims file, to determine the nature, extent, and etiology of any diagnosed renal mass. The examiner is requested to review the record and offer an opinion as to whether it is at least as likely as not (i.e., probability of approximately 50 percent) that any diagnosed renal mass had its onset in service; is related to the Veteran's military service, including his exposure to herbicide agents; or is caused or aggravated (permanently worsened beyond normal progression) by the service-connected diabetic nephropathy [If a renal mass is found to have been aggravated by the service-connected diabetic nephropathy, the examiner should quantify the approximate degree of aggravation.] A complete rationale should be given for all opinions and conclusions expressed. 4. After the completion of the instructions of paragraphs 1 through 3 and any other development deemed necessary, furnish the Veteran and his representative with a Supplemental Statement of the Case and give him an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal 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. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs