Citation Nr: 18146694 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-07 870 DATE: 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the bilateral knees. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the bilateral hands. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gout of the bilateral legs. 4. Entitlement to service connection for arthritis of the bilateral knees. 5. Entitlement to a disability rating in excess of 20 percent for varicose veins of the left leg. 6. Entitlement to a disability rating in excess of 20 percent for varicose veins of the right leg. November 1, 2018   ORDER New and material evidence having been received, the claim of entitlement to service connection for arthritis of the bilateral knees is reopened. As new and material evidence has not been received, the claim to reopen service connection for arthritis of the bilateral hands is denied. As new and material evidence has not been received, the claim to reopen service connection for gout of the bilateral legs is denied. REMANDED Entitlement to service connection for arthritis of the bilateral knees is remanded. Entitlement to a disability rating in excess of 20 percent for varicose veins of the left leg is remanded. Entitlement to a disability rating in excess of 20 percent for varicose veins of the right leg is remanded. FINDINGS OF FACT 1. In an unappealed June 1995 rating decision, the RO declined to reopen a claim of service connection for arthritis of the bilateral knees. Medical evidence received subsequent to the June 1995 rating decision is neither cumulative nor redundant of the evidence at the time of the June 1995 rating decision and, assuming its credibility, raises a reasonable possibility of substantiating the claim for service connection for entitlement to service connection for arthritis of the bilateral knees. 2. In an unappealed June 1995 rating decision, the RO declined to reopen a claim of service connection for arthritis of the bilateral hands. Medical evidence received subsequent to the June 1995 rating decision is not new and is cumulative and redundant of the evidence at the time of the June 1995 rating decision and, even assuming its credibility, does not raise a reasonable possibility of substantiating the claim for service connection arthritis of the bilateral hands. 3. In an unappealed June 1995 rating decision, the RO denied service connection for gout of the bilateral legs. Medical evidence received subsequent to the June 1995 rating decision, while chronologically new, is cumulative and redundant of the evidence at the time of the June 1995 rating decision and, even assuming its credibility, does not raise a reasonable possibility of substantiating the claim for service connection for gout of the bilateral legs. CONCLUSIONS OF LAW 1. The June 1995 decision declining to reopen a claim of entitlement to service connection for arthritis of the bilateral knees is final and the evidence received for service connection subsequent to that rating decision is new and material to reopen service connection for arthritis of the bilateral knees. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). 2. The June 1995 decision declining to reopen a claim of entitlement to service connection for arthritis of the bilateral hands is final and the evidence received for service connection subsequent to that rating decision is not new and material to reopen service connection for arthritis of the bilateral hands. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). 3. The June 1995 decision declining to reopen a claim of entitlement to service connection for gout of the bilateral legs is final and the evidence received for service connection subsequent to that rating decision is not new and material to reopen service connection for gout of the bilateral legs. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (1), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 1964 to May 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board notes that jurisdiction of these matters lies with the RO in Los Angeles, California. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board notes that in an April 1987 rating decision, service connection was granted for varicose veins of the bilateral lower extremities. In a December 2014 rating decision, the RO changed the disability rating from 30 percent bilaterally to 20 percent for each leg, effective February 8, 2011, the date VA received the Veteran’s claim for an increased rating. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). New and Material Evidence to Reopen Previously Denied Claims In an unappealed April 1987 rating decision, the RO denied service connection for arthritis of the bilateral knees and bilateral hands. In an unappealed June 1995 rating decision, the RO denied service connection for gout of the bilateral legs and declined to reopen service connection for arthritis of the bilateral knees and bilateral hands. In a December 2012 rating decision, the RO declined to reopen service connection for gout of the bilateral legs and arthritis of the bilateral hands, but did reopen service connection for arthritis of the bilateral knees and denied that claim on its merits after a de novo review. Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See, Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also, Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the issue before proceeding to adjudicate the underlying merits of the claim. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. §§ 7105 (c), (d)(3); 38 C.F.R. § 20.1103. A previously denied claim may be reopened by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156. 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. 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Moreover, the Court of Appeals for Veterans Claims ("Court") explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the bilateral knees. In a December 2008 private medical opinion, Dr. K. S. P. opined that the Veteran's bilateral knee degenerative osteoarthritis was "affected and aggravated by his long years of service with the Navy." The doctor noted that the Veteran served for 22 years and that his service entailed "long hours of standing and mobility with insufficient time for rest periods." The Board finds that this medical evidence was not previously submitted to VA before the June 1995 rating decision and is therefore “new” evidence. The evidence received subsequent to the June 1995 rating decision is a medical opinion providing a nexus opinion linking the Veteran’s osteoarthritis of the bilateral knees to his military service. The Board finds that, assuming its credibility for purposes of deciding whether to reopen the claim, this medical evidence of record constitutes new and material evidence to reopen the claim for service connection for arthritis of the bilateral knees. This new evidence addresses a requirement of service connection that was previously denied; a nexus linking the Veteran’s disability to his service. Therefore, this new evidence is material and the Veteran’s claim for service connection for arthritis of the bilateral knees is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for arthritis of the bilateral hands. Subsequent to the June 1995 rating decision, the Veteran has resubmitted service treatment records showing complaints of bilateral hand pain and stiffness. The Board notes that these records were reviewed by the RO as part of their original decision in April 1987 as well as the June 1995 rating decision. As such, the Board finds that these service treatment records do not constitute “new” evidence and are redundant of the evidence of record at the time of the June 1995 rating decision. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See, Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gout of the bilateral legs. A May 2008 laboratory report from Quest Diagnostics shows a uric acid reading of 8.1 which was flagged as high. The Board notes that aside from showing a high uric acid level, no diagnosis of any condition was regarding the high uric acid was provided. The Board notes that while this document is new in that it had not been previously submitted, it is not material as it does not address a requirement of service connection that was previously denied. Specifically, it does not tend to show that the Veteran has a diagnosis of gout that is related to the Veteran’s service. Here, while the May 2008 laboratory report is new, it is not material to the claim. Notably, the it does not provide a nexus between the claimed condition and the Veteran’s service. As new and material evidence has not been received, the benefit-of-the-doubt doctrine is not for application. See, Annoni v. Brown, 5 Vet. App. 463, 467 (1993) (benefit-of-the-doubt doctrine is doctrine is not applicable to applications to reopen unless the threshold burden of submitting new and material evidence has been met). REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the bilateral knees is remanded. In a December 2008 private medical opinion, Dr. K. S. P. opined that the Veteran's bilateral knee degenerative osteoarthritis was "affected and aggravated by his long years of service with the Navy." The doctor noted that the Veteran served for 22 years and that his service entailed "long hours of standing and mobility with insufficient time for rest periods." The Board notes that this opinion is confusing in that it states the Veteran’s Navy service “affected and aggravated” his bilateral knee arthritis, but didn’t state that it caused it, leading to a question as to whether the opinion insinuates that the arthritis pre-existed the Veteran’s military service. As such, the Board finds that this opinion is of limited probative value. The Veteran was afforded a VA knee examination in October 2012. The examiner opined that the Veteran’s bilateral knee osteoarthritis was less likely than not incurred in or caused by the Veteran’s service, noting that osteoarthritis was not diagnosed while in the service. The examiner then stated that the Veteran’s osteoarthritis is consistent with a person of his age group, regardless of military service, and concluded that “it is unlikely that the development of osteoarthritis on his knee joint was strictly the result of serving in the military.” The examiner then noted that “repeated overuse of any joint can expedite the progression of osteoarthritis.” When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the October 2012 VA opinion is contradictory in that the examiner opined against service connection, but then stated that the Veteran’s bilateral knee osteoarthritis wasn’t likely to be “strictly the result of serving in the military.” The Board notes that this latter statement indicates that the Veteran’s service at least in part was responsible for the Veteran’s bilateral knee osteoarthritis. For the above reasons, the Board finds that a remand is required for a new VA examination. 2. Entitlement to a disability rating in excess of 20 percent for varicose veins of the left leg is remanded. In a January 2015 statement, the Veteran asserted that left leg varicose vein disability has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left leg varicose vein disability. 3. Entitlement to a disability rating in excess of 20 percent for varicose veins of the right leg is remanded. In a January 2015 statement, the Veteran asserted that right leg varicose vein disability has increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his right leg varicose vein disability. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2014 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including a July 1973 motorcycle accident, an April 1981 fall, and/or overuse of the Veteran’s legs due to the rigors of his service duties. The examiner’s attention is invited to a July 1973 service treatment record notes the Veteran was involved in a motorcycle accident and reported an abrasion on the left patella. The examiner’s attention is invited to an April 1981 service treatment record notes the Veteran tripped and fell on his left knee the day before and reported pain on the medial aspect. Slight swelling was noted. A knee sprain was diagnosed. The examiner’s attention is invited to the December 2008 private medical opinion in which Dr. K. S. P. opined that the Veteran's bilateral knee degenerative osteoarthritis was "affected and aggravated by his long years of service with the Navy." The doctor noted that the Veteran served for 22 years and that his service entailed "long hours of standing and mobility with insufficient time for rest periods." All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral varicose veins of the lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to right leg varicose veins alone and discuss the effect of the Veteran’s right leg varicose veins on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left leg varicose veins alone and discuss the effect of the Veteran’s left leg varicose veins on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 4. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel