Citation Nr: 1804831 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-15 250 ) 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 sufficient to reopen a claim of entitlement to service connection for sarcoidosis, and, if so, whether the reopened claim should be granted. 2. Entitlement to service connection for right and left knee strain. 3. Entitlement to service connection for radiculopathy of the right lower extremity (RLE radiculopathy), claimed as right leg and foot tingling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran, friend ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1986 to November 1986 and from November 1990 to June 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2017, the Veteran testified at a Board videoconference hearing; a transcript of that hearing is of record. By way of background, a claim for service connection for sarcoidosis was denied in October 1993. The RO denied claims of service connection for RLE radiculopathy, right and left knee strain, and sarcoidosis in September 2012. In November 2012, the Veteran filed a notice of disagreement as to the denial the claims of service connection for RLE radiculopathy and right and left knee strain. He later filed a notice of disagreement in May 2013 as to the denial of his claim for service connection for sarcoidosis. Both notices of disagreement were timely. The Board notes that additional service treatment records appear to have been added to the claims file since the Veteran's sarcoidosis claim was originally denied in October 1993. Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (2017). The Board has reviewed these records, and has found them not relevant to the Veteran's sarcoidosis claim. Most of the newly submitted records appear to relate to the Veteran's first period of active duty, and it has been the Veteran's consistent claim that his sarcoidosis is related to his second period of active duty. The October 1993 decision makes apparent that the service treatment records from the second period of active duty were reviewed at that time. Therefore, the October 1993 decision remains final, and new and material evidence will be necessary to reopen the claim. FINDINGS OF FACT 1. In an October 1993 decision, the Veteran's claim for sarcoidosis was denied on the basis that it was not shown in service or was related to service. 2. Evidence received since the October 1993 rating decision, the most recent final decision, is not relevant to the basis for the denial of the prior claim for sarcoidosis. 3. The preponderance of the evidence is against a finding that the Veteran's right and left knee strain or radiculopathy had onset in service or is otherwise associated with service. CONCLUSIONS OF LAW 1. The October 1993 rating decision which denied entitlement to service connection for sarcoidosis is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Evidence received since the October 1993 rating decision is not new and material for purposes of reopening a claim for service connection for sarcoidosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for right and left knee strain have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for RLE radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence: Sarcoidosis In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, "new" evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); but see 38 U.S.C.A. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration 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. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless "patently incredible" See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran is seeking entitlement to service connection for sarcoidosis. This claim was previously denied by a rating decision in October 1993 based on a determination that there was no diagnosis or treatment for sarcoidosis while on active duty or within the presumptive period, and that there was no evidence establishing a relationship between this disorder and his active duty service. The Veteran did not appeal and the decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in October 1993 consisted of the following: copies of enlistment and discharge examinations during activation for Desert Storm and medical records from July 1993 diagnosing the Veteran with sarcoidosis. Evidence received since the rating decision includes additional service treatment records (STRs), which are not relevant to the claim on appeal, VA treatment records, records from the Social Security Administration, and lay statements from the Veteran and his friend. The Board finds the evidence submitted since October 1993 is new but not material. In-service incurrence or aggravation of a disease or injury is an element of service connection that was previously absent from the record. The evidence added since then provides no indication that the condition was incurred in or otherwise related to service. Thus, the new evidence does not address a previously unestablished fact necessary to substantiate the claim for service connection for sarcoidosis. Moreover, while the Veteran has more recently asserted that his sarcoidosis is related to various chemical exposures in service, to include anthrax, burn pit chemicals and depleted uranium, he has not presented any evidence to support that he was materially exposed to any of these chemicals beyond what appears to be speculation. Additionally, he has not provided any evidence to support the argument that such exposures would have led to his eventual diagnosis of sarcoidosis. See also Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008)(A claim for service connection based on a new or different theory of causation for the same disease or injury is still the subject of a previously denied claim and cannot be the basis of a new claim.) Under these circumstances, the Board must conclude that new and material evidence to reopen the claim for service connection for sarcoidosis has not been received, and the rating decision of October 1993 remains final. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen this finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). For a chronic disability to be established through continuity of symptomatology, the claimant must demonstrate (1) evidence that a condition was "noted" during service; (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 Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan, 451 F.3d at 1337 . The Veteran claims he is entitled to service connection for right and left knee strain and RLE radiculopathy which he asserts are all related to a motor vehicle accident he was involved in during service. For the reasons that follow, the Board finds that the Veteran's claimed disabilities were not incurred in or as a result of service. As such, service connection is not warranted. As a preliminary matter, the Board finds that the record on appeal establishes that neither left knee strain nor RLE radiculopathy were present during the Veteran's active duty or manifest to a compensable degree within the first post-service year. The Veteran's STRs are silent for mention of these conditions. The post-service record on appeal is similarly negative for complaints or findings of left knee or radiating pain within the first post-service year or, indeed, for many years thereafter. While the service treatment records do reflect knee pain in service in April 1991, it does not appear that this disorder was chronic in nature, as he did not report knee symptoms since that time in service. The record does reflect that the Veteran reported injuring himself in an in-service motor vehicle accident in November 1990. However, the record is silent regarding this accident or that he received any treatment related to this incident. In fact, the record reflects that, given the benefit of the doubt, the Veteran had back pain in 1996, roughly 5 years after service separation, which resolved by 2001. Right knee pain was not noted in the record until 2001, approximately 10 years after his in-service complaint and service separation; and left knee pain was noted in 2002. As such, a continuity of symptoms is not shown based on the clinical evidence. As part of this claim, the Board recognizes the Veteran's statements regarding his history of symptoms. In this regard, while the Veteran is not competent diagnose a disorder such as a knee disorder or radiculopathy, as they may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is insufficient by itself to warrant service connection. Specifically, not only has the Veteran not sought treatment for many years, the evidence reflects that he submitted a claim seeking service connection for sarcoidosis in 1993, but did not mention his knee symptoms or his radiculopathy. The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation related to other disorders, but made no reference to the other scars he claims now weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Had the Veteran had knee or radiculopathy symptoms at that time, as he now claims, there seems to be no reason why he would not have identified them at that time. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. In this case, however, none of the available treatment records indicate a relationship between his current left knee and radiculopathy complaints and his active duty service, nor has any treating physician opined that such a relationship exists. As for his right knee disorder, the Board places significant probative value on the opinion provided by a VA examiner in August 2013. There, after a review of the claims file, the examiner determined that the Veteran's right knee disorder was less likely than not related to his in-service knee injury. In providing this opinion, the examiner reflected that, although injuries can sometimes result in traumatic arthritis, X-rays of the knees in this case were normal in 2012. As such, there coele be no clinical relationship. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his knee and radiculopathy disorders to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of the disorders he now claims. See Jandreau, 492 F.3d at 1377, n.4. Because disorders such as knee or radiculopathy disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's claimed disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. ORDER Reopening of the claim of service connection for sarcoidosis is denied. Service connection for right and left knee strain is denied. Service connection for RLE radiculopathy is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs