Citation Nr: 18147812 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-17 534 DATE: November 6, 2018 ORDER The application to reopen the claim of entitlement to service connection for a low back condition is denied. Service connection for a right knee disorder is denied. Service connection for scars associated with surgery for bilateral gynecomastia is denied. FINDINGS OF FACT 1. In an August 2013 rating decision, the RO denied the Veteran’s claim for service connection for a low back disorder, and notified the Veteran of its decision. The Veteran did not file a notice of disagreement (NOD) to appeal the August 2013 decision, and it became final. 2. Evidence received since the August 2013 rating decision is not new and material and does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a low back disorder. 3. The Veteran’s right knee disorder was not incurred in service and is not otherwise related to an in-service injury, event, or disease. 4. The Veteran’s surgical scars, which were a result of elective surgery for a bilateral gynecomastia, are not associated with a service-connected disability, and were not aggravated by service. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied service connection for a low back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has not been received since the last denial of service connection for a low back disorder and the application to reopen the claim is denied. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). 3. The criteria for service connection for a right knee disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for scars associated with surgery for bilateral gynecomastia are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to August 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Application to Reopen Previously Denied Claim A finally adjudicated claim may be reopened if the claimant submits new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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 provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raise a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an August 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a low back condition. The evidence reviewed included the Veteran’s service treatment records and post-service medical records, including a treatment note from June 1992 where the Veteran reported injuring his back two and a half years prior. The RO concluded that, although post-service VA medical records showed treatment for a low back condition, his service treatment records contained no evidence of in-service complaints, treatment, or diagnosis for a back condition. The Veteran was notified of the decision in August 2013. He did not initiate an appeal or submit new and material evidence within one year of the rating decision and it became final. Evidence since the final August 2013 rating decision consists of VA medical records showing that the Veteran complained of, and was treated for, low back pain. While the medical evidence associated with the claims file is new, it is not material in substantiating the Veteran’s claim. None of the evidence supports the contention that the Veteran’s current back condition is associated with his military service. The Board finds that new and material evidence has not been presented to reopen the Veteran’s previously denied claim of service connection for a low back condition. Service Connection—Laws and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Right Knee The Veteran contends that he is entitled to service connection for a right knee disorder. In his March 2017 VA Form 9, the Veteran stated that he had problems with his knee while performing field exercises in service. He stated he was discouraged from reporting injuries, and his medical complaints were not documented. Upon review of the evidence of record, the Board finds that the evdicne weighs against a finding that the Veteran’s right knee disorder was incurred in service or is otherwise related to service. The Veteran’s August 1973 service entrance examination report was normal. There are no complaints of or treatment for a right knee condition during service, and the Veteran did not indicate having a problem with his right knee in his August 1976 service separation examination report. VA treatment notes show the Veteran was assessed to have chronic right knee pain in June 1994 and was prescribed ibuprofen for pain. He complained of right knee pain again in February 2002 and March 2004. Treatment notes indicate the Veteran was given a general diagnosis of degenerative joint disease (DJD), but it is unclear if this was specifically associated with the right knee. He was prescribed motrin to manage DJD pain. In May 2008, the Veteran was noted to have right knee pain and mild swelling for one week. He was given a right knee brace in June 2008. VA medical records from June 2011, February 2014 and July 2015 indicate the Veteran continued to report right knee pain and swelling. While the Veteran believes his right knee, pain is related to military service, the Board reiterates that the preponderance of the evidence weighs against finding that an in-service injury, event, or disease occurred. The Veteran’s only contention is that he had problems with his knee during in-service field exercises and that his complaints were not documented. He has not provided any additional details about the condition of his right knee during service, and he did not report any ailment associated with his right knee at service separation. The first documented report of right knee pain within the claims file is from June 1994, nearly 20 years after service discharge. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). At no point within the post-service medical records did the Veteran or his physicians state that the Veteran’s current right knee pain is linked to his military service. Given the foregoing, the Board finds that the preponderance of the evidence is against the claim for service connection for a right knee disorder, and that the claim must be denied. The Board has considered the applicability of “benefit of the doubt” doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matters on that basis. 38 U.S.C. § 5107 (b). Scars The Veteran contends that his chest scars are secondary to surgery associated with bilateral gynecomastia. In his October 2015 notice of disagreement, the Veteran stated his surgical scars are tender, and that because the surgery was performed during service he is entitled to service connection. In a June 2003 rating decision, the Veteran was denied service connection for bilateral gynecomastia. Service treatment records show the Veteran requested to undergo an elective bilateral mastectomy for bilateral gynecomastia. It was noted the condition was present for several years prior to service entrance, and was asymptomatic at the time of the surgery. After surgery, the Veteran reported no complaints, and the scars were well-healed. At service separation, the Veteran did not report having any problems associated with his surgical scars. The Veteran was afforded a VA examination in June 2017. At the examination, the Veteran reported that lumps grew on both sides of his chest, and he asked to have them removed. The examiner diagnosed scars status/post surgery for gynecomastia. Upon examination, the scars were noted to be on the Veteran’s trunk, they were not painful or unstable, and did not result in any limitation of function. The claims file does not contain any additional post-service medical records with documented complaints of or treatment for the Veteran’s surgical scars. As the Veteran is not currently service-connected for bilateral gynecomastia, secondary service connection for residuals scars of the surgery may not be established as a matter of law. See 38 C.F.R. § 3.310 (a). The Board also finds that the evidence weighs against a finding that the Veteran is entitled to service connection on a direct basis for his scars. While acknowledging that the Veteran has residual scars as a result of surgery performed during active service, one of the requirements to establish service connection is that the Veteran incur or aggravate a disease or injury during service. In this case, the Veteran underwent elective surgery for a bilateral gynecomastia, and such surgery was not the result of a disease or injury in service. Also, there is no evidence indicating that the surgery was a result of aggravation of a condition while in-service. As the Veteran’s claim does not meet the elements of service connection, the claim for entitlement to service connection for residual scars of a bilateral gynecomastia is denied. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel