Citation Nr: 18139815 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-36 411 DATE: October 1, 2018 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for a neck disorder is denied. The request to reopen the finally disallowed claim of entitlement to service connection for a low back disorder, to include arthritis is denied. Entitlement to service connection for a left knee condition is denied. Entitlement to service connection for a right knee condition is denied. Entitlement to service connection for a kidney disorder is denied. Entitlement to service connection for a sciatic nerve disorder of the left leg, to include as secondary to a low back disorder, is denied. FINDINGS OF FACT 1. Service connection for a neck disorder and low back disorder was denied by the RO in an October 2008 rating decision, which was not appealed and became final. 2. The evidence received since the October 2008 rating decision is cumulative of evidence already of record, and does not relate to an unestablished fact necessary to substantiate the claims of service connection for a neck disorder and a low back disorder. 3. There has been no demonstration by competent medical, nor competent and credible lay evidence of record that the Veteran’s left knee disorder is related to service. 4. There has been no demonstration by competent medical, nor competent and credible lay evidence of record that the Veteran’s right knee disorder is related to service. 5. The competent evidence of record does not demonstrate a current disability involving the kidney. 6. There has been no demonstration by competent medical, nor competent and credible lay evidence of record that the Veteran’s sciatic nerve disorder of the left leg, to include as secondary to a low back disorder is related to service. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2017). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for arthritis of the neck. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1111 (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). 4. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1111 (West 2014); 38 C.F.R. §§ 3.303, 3.309 (2017). 5. The criteria for entitlement to service connection for a kidney disorder have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1113 (West 2014); 38 C.F.R. § 3.303 (2017). 6. The criteria for service connection for a right knee condition have not been met. 38 U.S.C. §§ 1110, 1111 (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to April 1981. This appeal before the Board of Veterans’ Appeals (Board) arose from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). See October 2010 Rating Decision; July 2012 Rating Decision; March 2013 Notice of Disagreement; August 2014 Statement of the Case; October 2014 Substantive Appeal (VA Form 9). Although the Veteran’s October 2014 VA Form 9 (submitted in conjunction with the current appeal) did not indicate whether the Veteran desired a hearing before the Board, neither the Veteran nor his representative have indicated that he desires a hearing before the Board at any subsequent time in statements submitted to the Board. Further, in the July 2018 Appellate Brief, the Veteran’s representative stated that the Veteran did not request a hearing. Therefore, there is no outstanding hearing request, and the Board may adjudicate the Veteran's claim on appeal. 38 C.F.R. §§ 20.700 (a), 20.703 (2017). New and Material Evidence The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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). For the limited purpose of determining whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Neck Disorder Service connection for a neck condition was previously denied by the RO in an October 2008 rating decision. The evidence of record at the time of the October 2008 rating decision includes the service treatment records showing treatment for a neck strain that resolved; VA outpatient records (dated from August 2003 to October 2008) showing a history of neck pain; private medical records (dated from May 1990 to July 2007) showing no treatment or diagnosis of a neck condition; and an April 2008 VA examination report, showing no evidence of a current neck disability. The RO determined that although there was a record of treatment in service for a neck condition, there was no permanent residual or chronic disability subject to service connection as shown by the service treatment records or demonstrated by the evidence following service. New and material evidence was not received within one of the October 2008 rating decision. 38 C.F.R. § 3.156(b). Although the Veteran was notified of the decision and his appellate rights in October 2008, he did not file an appeal and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The evidence received since the October 2008 rating decision consists of additional statements from the Veteran and his representative; VA treatment records (dated from April 2010 to June 2011); and a September 2011 VA examination report. The VA treatment records do not make any reference to treatment or diagnosis of a neck disability. The statements from the Veteran and his representative are duplicative of his contentions that were previously of record at the time of the October 2008 rating decision, and simply continue to contend that his claimed neck disability is the result of his service – a fact that was considered and rejected by the RO in October 2008. Moreover, the September 2011 VA examination report reflect a history of an in-service neck sprain, which the Veteran related the onset date was during his time in the military. The examiner stated that there was no clear proof that the Veteran had arthritis of the cervical spine, and that even if arthritis of the cervical spine was found, he would be expected to have at least a minimum finding due to his age. The examiner opined that it was highly unlikely that the Veteran had arthritic changes of the neck, and that it was highly unlikely that he had arthritis of the neck that was related in any way to his military experience. This VA examination report contains no new facts because the evidence on file in October 2008 likewise showed a neck strain in service, contained no definitive objective data of an orthopedic and/or musculoskeletal impairment of the cervical spine, and showed no evidence indicating that any current neck disability was related to service. Because the evidence added the record since October 2008 is neither new nor material evidence, any defacto reopening of this claim by the RO, based on the September 2011 report of VA examination, was in error. Cf. Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Grivios v. Brown, 6 Vet. App. 136, 140 (an examination of the Veteran would not have been necessary unless his claim was to be adjudicated on the merits). Therefore, the Board finds that the evidence received since the October 2008 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection. Consequently, new and material evidence has not been received, and the request to reopen the previously and finally disallowed claim of the entitlement to service connection for a neck condition is denied. Low Back Service connection for a low back disorder was previously denied by the RO in an October 2008 rating decision. The evidence of record on file at the time of the October 2008 rating decision includes the Veteran’s service treatment records, VA treatment records (dated from August 2003 to October 2008), private medical records (from May 1990 to July 2007), and an April 2008 VA examination report. The service medical records reveal that in June 1977 that the Veteran received treatment for low back pain after moving equipment; the diagnosis was of a low back strain. In September 1977, the Veteran was seen in an orthopedic clinic with a three-month history of back pain without radiation; an x-ray report showed no significant abnormalities. A September 1977 physical therapy note reveals that the Veteran walked with a normal gait and his forward and side bending were in normal limits. In February 1981, while on terminal leave, there was mention of low back pain. There is no separation examination in the claims file. There is no further evidence of a back condition until June 1990. Specifically, in a June 1990 discharge summary, the Veteran noted that back pain developed about a month prior when he had to move a heavy object at work. He also noted left leg pain. The Veteran’s private treatment records show a diagnosis of herniated lumbar disc L3-4 with lateral hemi laminectomy with microdissection in June 1990 and lumbar spondylosis in July 2007. The April 2008 VA examination report revealed that there was no indication that the Veteran’s back condition was related to service. The RO denied the claim on the basis that the Veteran’s treatment for low back strain and complaint of recurrent lumbosacral pain noted in service were not related to his current low back disability, to include lumbar herniated disc, lumbar spondylosis, and status post laminectomy. New and material evidence was not received within one of the October 2008 rating decision. 38 C.F.R. § 3.156(b). Although the Veteran was notified of the decision and his appellate rights in October 2008, he did not file an appeal and the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. The evidence received since the October 2008 rating decision consists of additional VA treatment records, another VA examination report, and additional statements provided by the Veteran. The VA treatment records (dated from April 2010 to June 2011) show that the Veteran is continually receiving treatment for his low back and that he has had a third back surgery since the last VA examination, but these VA treatment records do not indicate that his current back disability is related to service. Moreover, the September 2011 report of VA examination indicates diagnoses of chronic back pain, with an onset date of 2006, as well as lumbar laminectomies occurring in 1990, 1992, and 2008. The examiner stated that there was no indication of lower back pain from his discharge from the military until 1990, when he experienced an acute episode. Further, the examiner stated that the Veteran’s current back problem was not related to the muscle strain sustained while in the military. The examiner also clarified that the Veteran suffered a strain in service, not a disc herniation or other disc problem. Further, the examiner noted that the Veteran stated that he was provided muscle relaxants and that they helped relieve the pain before the disc problem in 1990. Based on that history, the examiner noted that muscle relaxants would not have helped a disc problem, and that it was believed that his current back problem was not related to the occurrence of a muscle strain while he was in the military. Additionally, the examiner noted that the Veteran had minimal radiographic findings suggesting arthritis in his back and that, at his current age, it was expected that he would have these findings. The examiner also pointed to a 2007 radiograph of the lumbar spine which showed that the Veteran did not have arthritis and noted that the lumbar spine films, taken in the military, did not show arthritis. These pieces of evidence contain no new facts because the evidence on file in October 2008 showed a current low back disability but likewise showed no evidence indicating that any current back disability was related to service. The Board also acknowledges the Veteran’s statements that he injured his back in service and that he has experienced discomfort in the lower back and legs since service. See September 2010 Statement in Support of Claim. Months prior, in a February 2010 mental health consultation report, the Veteran noted that he had back pain and that his nerve damage arose from injuries sustained while working at a construction site in 1989. These statements are neither new nor material because one statement speaks to a post-service intercurrent cause for his low back condition, and the other simply continues to contend that his claimed back disability is the result of his service, both of which were facts that were already considered and rejected by the RO in October 2008. Because the evidence added the record since October 2008 is neither new nor material evidence, any defacto reopening of this claim by the RO, based on the September 2011 report of VA examination, was in error. Cf. Falzone and Grivios, both supra. Therefore, the Board finds that the evidence received since the October 2008 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran’s claim of service connection. Consequently, new and material evidence has not been received to reopen such claims and the Veteran’s appeal must be denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. Id. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303 (b). To prevail on the issue of service connection, a claimant must show: “(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.” Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. 1. Entitlement to service connection for a left knee disorder. The Veteran contends that his left knee disorder is related to service. VA medical records show a current diagnosis of a ruptured, torn meniscus of the left knee. The Board finds, however, that the Veteran is not entitled to service connection on a presumptive, direct, or secondary basis. The Board first analyzed whether the Veteran was entitled to presumptive service connection for his left knee arthritis under 38 C.F.R. § 3.303 (b). The Veteran’s service treatment records show no complaints of or treatment for a left knee disorder. Following separation, the Veteran filed a claim for service connection for his low back, neck, and tuberculosis in January 2008. No knee complaints were noted. In a May 1990 private medical report, the Veteran complained of left lower extremity pain. In June 2009, the Veteran complained of back pain due to moving a heavy box at work, which then developed into a radiating pain in his left hip, anterior thigh, and over the proximal anterior leg. In a July 2007 private medical report, the Veteran had full motion of his knees. In an August 2008 VA medical record, x-rays revealed a ruptured, torn meniscus of the left knee. This medical record also revealed that the Veteran had been suffering from the problem for two years. In September 2010, a magnetic resonance imaging (MRI) of the knee revealed a medial meniscus horizontal tear and no other ligamentous pathology of the knee. In April 2013, the impressions were of a left knee meniscus tear and a posterior tibial tendon insufficiency bilaterally. Given this evidence, the Veteran is not entitled to presumptive service connection based on a chronic disease because the evidence does not show that his arthritis manifested in service or within one year after separation from service. Moreover, this evidence does not demonstrate a continuity of symptomatology. While the Veteran contends he has experienced knee pain since service, his contentions are contradicted by his medical records, which do not show diagnoses, complaints, or treatment of left knee pain until many years after service. His contentions of continuity are also contradicted by his VA claims history. Again, the Veteran filed a claim for service connection for other disorders in January 2008; yet, he did not claim a left knee disorder. Failure to file a claim is not necessarily indicative of the absence of symptomatology; however, as the Veteran took action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. Thus, the Veteran’s inaction regarding his left knee claim, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative that he did not experience the alleged symptomatology at that time. In sum, the totality of the evidence does not show that the knee arthritis started in service or within one year after service, nor does the evidence show a continuity of symptomatology following service. Service connection is therefore not warranted on a presumptive basis pursuant to 38 C.F.R. § 3.303 (b). The Board additionally considered whether service connection is warranted on a direct basis but finds that it is not. The Veteran’s available service treatment records reveal no indication of a left knee disorder, and the Board notes that the Veteran’s separation examination is unavailable. In addition to the Veteran’s service treatment records and VA claims history, the Board also relies on his VA medical records. Despite the Veteran’s complaints of left lower extremity pain in 1990, he was not diagnosed with a left knee condition until 2008. The Board considered the Veteran’s contention that he has experienced knee pain since service, but finds his contentions are not credible, as this is contradicted by his VA claims history and post-service VA and private medical records showing a total lack of relevant complaints for many years. Further, the Board acknowledges the Veteran’s contentions that his left leg disorder is secondary to the sciatic nerve condition that he sustained in service. See September 2010 Statement in Support of Claim. Yet, the Board finds that service connection is not warranted on a secondary basis as service connection has not been established for a low back disorder or for a sciatic nerve disorder. The Board thus finds that the evidence weighs against service connection for the left knee disorder on a presumptive, direct, or secondary basis and the claim is denied. 2. Entitlement to service connection for a right knee disorder. The Veteran contends that his right knee disorder is related to service. VA medical records show a current diagnosis of a tear at the posterior horn meniscus. The Board finds, however, that the Veteran is not entitled to service connection on a presumptive or direct basis. The Board first analyzed whether the Veteran was entitled to presumptive service connection for his right knee arthritis under 38 C.F.R. § 3.303 (b). The Veteran’s service treatment records are silent as to complaints of or treatment for a right knee disorder. Following separation, the Veteran filed a claim for service connection for his low back, neck, and tuberculosis in January 2008. Knee complaints were not noted. In a May 1990 private treatment report, the Veteran complained of left lower extremity pain. The Veteran denied any other medical problems. In a July 2007 private treatment report, the Veteran had full motion of his knees. In December 2010, an MRI showed a tear at the posterior horn meniscus. In light of this evidence, the Board finds that the Veteran is not entitled to presumptive service connection based on a chronic disease because the evidence does not show that his arthritis manifested in service or within one year after separation from service. The Board further finds that the evidence does not demonstrate a continuity of symptomatology. While the Veteran contends he has experienced knee pain since service, his contentions are contradicted by his medical records, which show a normal knee following separation and do not show complaints of knee pain until many years after service. His contentions of continuity are also contradicted by his VA claims history. Again, the Veteran filed a claim for service connection for other disorders in January 2008; yet, he did not claim a right knee disorder. Failure to file a claim is not necessarily indicative of the absence of symptomatology; however, as the Veteran took action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. Thus, the Veteran’s inaction regarding his right knee claim, when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative that he did not experience the alleged symptomatology at that time. In sum, the totality of the evidence does not show that the knee arthritis started in service or within one year after service, nor does the evidence show a continuity of symptomatology following service. Service connection is therefore not warranted on a presumptive basis pursuant to 38 C.F.R. § 3.303 (b). The Board additionally considered whether service connection is warranted on a direct basis but finds that it is not. The Veteran’s available service treatment records are silent as to a right knee disorder, and the Board notes that the Veteran’s separation examination is unavailable. In addition to the Veteran’s service treatment records and VA claims history, the Board also relied on his VA medical records. When the first Veteran presented to VA in 1990, he did not report a right knee condition. Further, he was not diagnosed with a right knee condition until 2010 when he was referred for an MRI. The Board considered the Veteran’s contention that he has experienced knee pain since service, but finds his contentions are not credible, as this is contradicted by his VA claims history and post-service VA and private medical records showing a total lack of relevant complaints for many years. The Board thus finds that the evidence weighs against service connection for the right knee disorder on a presumptive or direct basis and the claim is denied. 3. Entitlement to service connection for a kidney disorder. The Veteran seeks entitlement to service connection for a kidney condition. The Veteran contends that he has developed a kidney disorder as result of his period of service. The Veteran’s service treatment records contain no clinical indication to support a diagnosis, complaint, or treatment for a kidney disability during military service. Similarly, the Veteran’s post-service VA and private treatment records do not reflect a diagnosis of a kidney disability. Most notably, a May 2010 VA treatment record reveals an unremarkable CT scan of the abdomen and pelvis except for a benign-appearing cyst of the right kidney. No diagnosis of a kidney disability, however, was rendered. While the Board has considered the Veteran’s complaints of kidney problems, the evidence reflects that such complaints of symptoms do not amount to a disability that functionally impairs the Veteran. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Here, the service treatment records and post service treatment records, overall, provide highly probative evidence against the Veteran’s claim of a current kidney disability. To warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a Veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007). While the Board recognizes the Veteran's belief in his claim, the most competent medical evidence of record does not show that the Veteran has a current disability involving his kidneys. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See, e.g., Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). However, Congress has specifically limited entitlement to service connection for a disease or injury where such instances have resulted in a disability. 38 U.S.C. § 1110. Hence, where the evidence does not support a finding of a currently kidney disability upon which to predicate a grant of service connection, there can be no valid claim for this benefit. See Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) Because the first element of service connection, i.e., a current disability, has not been met, service connection for a kidney disorder must be denied. 4. Entitlement to service connection for a sciatic nerve disorder of the left leg, to include as secondary to a low back disorder is denied. The Veteran contends that his sciatic nerve disorder is related to service or, in the alternative, due to his low back disorder. A December 2010 VA medical records show a diagnosis of sciatica. The Board finds, however, that the Veteran is not entitled to service connection on a presumptive, direct, or secondary direct basis. The Board first analyzed whether the Veteran was entitled to presumptive service connection for his sciatic nerve disorder under 38 C.F.R. § 3.303 (b). The Veteran’s service treatment records are silent as to complaints of or treatment for a sciatic nerve disorder. Following separation, the Veteran filed a claim for service connection for his low back, neck, and tuberculosis in January 2008. A sciatic nerve disorder complaint was not noted. The first documented instance of a sciatic nerve disorder was in December 2010, nearly two decades following service. Given this evidence, the Veteran is not entitled to presumptive service connection based on a chronic disease because the evidence does not show that his condition manifested in service or within one year after separation from service. The evidence likewise does not demonstrate a continuity of symptomatology. While the Veteran contends he has experienced a sciatic nerve disorder since service, his contentions are contradicted by his medical records, which do not show complaints of a sciatic nerve disorder until many years after service. His contentions of continuity are also contradicted by his VA claims history. Again, the Veteran filed a claim for service connection for other disorders in January 2008; yet, he did not claim his sciatic nerve disorder. Failure to file a claim is not necessarily indicative of the absence of symptomatology; however, as the Veteran took action regarding other claims, it is reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. Thus, the Veteran’s inaction regarding his sciatic nerve disorder when viewed in the context of his action regarding his other claims for compensation, may reasonably be interpreted as indicative that he did not experience the alleged symptomatology at that time. In sum, the totality of the evidence does not show that the sciatic nerve disorder started in service or within one year after service, nor does the evidence show a continuity of symptomatology following service. Service connection is therefore not warranted on a presumptive basis pursuant to 38 C.F.R. § 3.303 (b). The Board additionally considered whether service connection is warranted on a direct basis but finds that it is not. The Veteran’s available service treatment records are silent as to a sciatic nerve disorder, and the Board notes that the Veteran’s separation examination is unavailable. In addition to the Veteran’s service treatment records and VA claims history, the Board also relied on his VA medical records. The Veteran’s service treatment records are silent as to a sciatic nerve disorder. Further, when the Veteran first presented to VA in the early 1990s, he did not report a sciatic nerve condition. Further, he was not diagnosed with a sciatic nerve disorder until 2010. The Board considered the Veteran’s contention that he has experienced a sciatic nerve disorder since service, but finds his contentions are not credible, as this is contradicted by his VA claims history and post-service VA and private medical records showing a total lack of relevant complaints for many years following discharge. Further, the Board finds that service connection is not warranted on a secondary basis as service connection has not been established for a low back disorder. The Board thus finds that the evidence weighs against service connection for the sciatic nerve disorder on a presumptive, direct, or secondary basis and the claim is denied. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tiffany N. Hanson, Associate Counsel