Citation Nr: 18148449 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-43 373 DATE: November 7, 2018 ORDER The application to reopen the claim for service connection for a low back disability is granted. The application to reopen the claim for service connection for a right knee disability is granted. The application to reopen the claim for service connection for hepatitis C is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected disease or injury is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer, status post prostatectomy is remanded. Entitlement to a disability rating in excess of 10 percent for residuals of cyst excision, left knee is remanded. Entitlement to a disability rating in excess of 10 percent for numbness of the left foot and great toe associated with residuals of cyst excision, left knee is remanded. FINDINGS OF FACT 1. In an unappealed November 2013 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for hepatitis C. 2. The evidence received since the November 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C. 3. In an unappealed April 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a low back disability. 4. The evidence received since the April 2011 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability. 5. In an unappealed April 2011 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for a right knee disability, and in an unappealed November 2013 rating decision, the RO continued the previous denial of the right knee disability claim. 6. The evidence received since the November 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability. CONCLUSIONS OF LAW 1. The November 2013 rating decision denying service connection for hepatitis C is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Since the November 2013 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for hepatitis C; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 2011 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 4. Since the April 2011 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a low back disability; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The November 2013 rating decision denying the reopening of the previously denied claim of service connection for a right knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 6. Since the November 2013 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a right knee disability; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had a period of active duty for training (ACDUTRA) from July 1977 to October 1977 as well as a period of active duty from March 1979 to November 1980. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before RO personnel in June 2016. A transcript of the hearing has been associated with the claims folder. New and Material Evidence Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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” – the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For the showing of 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 disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “Material” evidence means 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. See 38 C.F.R. § 3.156(a) (2017). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for a low back disability and a right knee disability to include as secondary to service-connected residuals of cyst excision of the left knee in an April 2011 rating decision because there was no evidence which showed the conditions began in or were caused by service or were related to the service-connected residuals of cyst excision of the left knee. Also, the RO denied service connection for hepatitis C in a November 2013 rating decision because there was no evidence that the condition occurred in or was caused by service. The RO also declined reopening the previously denied claim of service connection for a right knee disability to include as secondary to the service-connected residuals of cyst excision of the left knee as there was no submission of new and material evidence. The Veteran did not appeal the denials of the April 2011 and November 2013 rating decisions and new and material evidence was not associated with the claims folder within one year of the rating decisions. The decisions therefore became final. At the time of the prior final rating decision in April 2011 denying service connection for a low back disability, the record in pertinent part included the Veteran’s service treatment records, post-service treatment records, and a VA examination report dated October 2010. The Veteran’s service treatment records documented a report of back pain in February 1980. The October 2010 VA examination report noted the Veteran’s report that his low back symptoms were due to his service-connected cyst excision residuals of the left knee and that he had an altered gait. After examination of the Veteran, the VA examiner diagnosed the Veteran with herniated lumbar disc with compression on thecal sac, disc bulges and degenerative changes of the lumbar spine and opined that the Veteran’s altered gait is less likely as not the cause of his herniated lumbar disc. At the time of the prior final rating decision denying service connection for hepatitis C in November 2013, the record in pertinent part included the Veteran’s service treatment records and post-service treatment records. The Veteran’s service treatment records were absent complaints of or symptoms related to hepatitis C. Post-service medical records documented diagnosis of hepatitis C. At the time of the prior final rating decision denying the reopening of a right knee disability in November 2013, the record in pertinent part included the Veteran’s service treatment records, post-service treatment records, and VA examination reports dated October 2010 and November 2013. The Veteran’s service treatment records were absent complaints of or symptoms related to his right knee. The VA examination reports noted the Veteran’s statement that his right knee symptoms are due to his service-connected residuals of cyst excision of the left knee. Although examination of the right knee was normal during the October 2010 VA examination, the November 2013 VA examination documented diagnosis of degenerative joint disease of the right knee and the VA examiner opined that it is not at least as likely as not that the right knee disability is proximately due to or aggravated by the residuals of cyst excision of the left knee. As the April 2011 and November 2013 rating decisions are final, new and material evidence is required to reopen the claims. In reviewing the evidence added to the claims folder since the April 2011 and November 2013 denials, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran’s claims of service connection for hepatitis C, a low back disability, and a right knee disability. Specifically, during the June 2016 RO hearing, the Veteran testified that his hepatitis C is due to receiving air gun injections with the same needle used by other soldiers during his service in Germany. He further testified during the hearing that he has had a continuity of low back symptoms since service. Finally, he testified that his right knee symptoms have worsened due to leaning more on the right knee from pain in the left knee, thereby indicating aggravation of the right knee. As indicated above, the Veteran’s previous claims were denied in part because there was no evidence of a current disability related to in-service disease or injury or service-connected disability. As the new evidence now indicates in-service injury causing hepatitis C, continuity of low back symptoms since service, and aggravation of right knee disability by service-connected residuals of excision cyst of the left knee, the Board finds that the new evidence relates to unestablished facts necessary to substantiate the claims. As new and material evidence has been received, the claims for service connection for hepatitis C, low back disability, and right knee disability are reopened. REASONS FOR REMAND 1151, hepatitis C, low back disability, right knee disability, excision cyst of left knee residuals, and numbness of left foot and great toe With respect to the claims remanded herein, a statement of the case (SOC) was issued for these claims in August 2016. Additional pertinent evidence, specifically Social Security Administration (SSA) records, VA treatment records, and VA examination reports dated December 2016 for the Veteran’s residuals of excision cyst of the left knee and numbness of left foot and great toe have since been associated with the claims file without a waiver of review. Under this circumstance, the Board will remand this matter for RO consideration of the additional evidence received in the first instance and issuance of a supplemental statement of the case reflecting any further action required and consideration of that evidence. See 38 C.F.R. §§ 19.31(a), 19.37(a). Additionally, a report received by VA in October 2017 from I Care CNA Services, Inc. notes the Veteran receives regular medical treatment from this facility. A review of the record reveals that these treatment records are not associated with the claims folder. As such, the Board finds that on remand, all outstanding records from this facility should be obtained and associated with the claims folder. With respect to the Veterans’ claim of service connection for hepatitis C, the Veteran contends that he has hepatitis C as a result of his service, specifically from his service in Germany when he received injections with the same needle used by other soldiers. See, e.g., the June 2016 RO hearing transcript, page 3. The Board notes that the Veteran’s service treatment records are absent complaints of or treatment for hepatitis C. However, the Board acknowledges the Veteran’s report of receiving injections during service from the same needle used by other soldiers. Indeed, the Board notes that the Veteran is competent to describe the injections he received, and the symptoms he felt. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the current medical evidence of record documents an active problem of hepatitis C. See, e.g., a VA treatment record dated January 2012. There is no medical opinion of record as to whether the Veteran’s current hepatitis C is related to his service. In light of the foregoing, the Board finds that an opinion for such should be obtained on remand. The Board also notes that during the June 2016 RO hearing, the Veteran testified that he was initially diagnosed with hepatitis C in the 1980s and 1990s. See the June 2016 RO hearing, page 3. The Board further observes that there are no treatment records associated with the claims folder that document treatment for hepatitis C in the 1980s and 1990s. Therefore, the Board finds that outstanding treatment records for treatment of hepatitis C, in particular records from the 1980s and 1990s, should be obtained on remand. With regard to the Veteran’s claim of service connection for a right knee disability, the Veteran contends that he has a right knee disability that is related to his service, or is alternatively secondary to his service-connected residuals of cyst excision of the left knee. The Veteran was provided a VA examination in November 2013 in order to determine whether he has a right knee disability that is secondary to his residuals of cyst excision of the left knee. After examination of the Veteran, the VA examiner diagnosed the Veteran with degenerative joint disease of the right knee and and concluded that it is less likely than not that the Veteran’s right knee disability is proximately due to or caused by the residuals of cyst excision of the left knee. However, the VA examiner did not provide an opinion as to whether the Veteran’s right knee disability is aggravated by the residuals of cyst excision of the left knee. There is no medical opinion of record addressing this issue. In light of the foregoing, the Board finds that an addendum opinion should be obtained as to whether the Veteran’s right knee disability is aggravated by his residuals of cyst excision of the left knee. With respect to the Veteran’s claim of service connection for a low back disability, the Veteran contends that he has a low back disability that is related to his service, or is alternatively secondary to his service-connected residuals of cyst excision of the left knee. The Veteran was provided a VA examination in October 2010 in order to determine whether he has a low back disability that is secondary to his residuals of cyst excision of the left knee to include his altered gait as a result of the left knee disability. After examination of the Veteran, the VA examiner diagnosed the Veteran with herniated lumbar disc with compression on thecal sac, disc bulges and degenerative changes of the lumbar spine and concluded that it is less likely than not that the Veteran’s altered gait is the cause of his herniated lumbar disc. However, the VA examiner did not provide an opinion as to whether the Veteran’s low back disability is aggravated by the residuals of cyst excision of the left knee. There is no medical opinion of record addressing this issue. In light of the foregoing, the Board finds that an addendum opinion should be obtained as to whether the Veteran’s low back disability is aggravated by his residuals of cyst excision of the left knee to include altered gait. Moreover, as the Veteran’s service treatment records document complaints of back pain in February 1980, the Board finds that an opinion should be obtained as to whether the Veteran’s current low back disability is related to his service. The matters are REMANDED for the following action: 1. Request the Veteran to provide authorization to obtain any outstanding, relevant private treatment records, to include records from I Care CNA Services, Inc. as well as treatment records from the 1980s and 1990s pertaining to treatment for hepatitis C that were identified by the Veteran during his June 2016 RO hearing. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of his hepatitis C, right knee disability, and low back disability. The claims file, including a copy of this REMAND, must be made available to the examiner for review. Based on the review and the examination, the examiner should respond to the following: a. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran’s hepatitis C was incurred in or aggravated by his service, to include his report of receiving injections with the same needle used by other soldiers during his service in Germany. b. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a right knee disability that is caused or aggravated (i.e., worsened beyond the normal progression of the disability) by his service-connected residuals of cyst excision of the left knee. If the examiner finds that the right knee disability is aggravated by the service-connected residuals of cyst excision of the left knee, then he/she should quantify the degree of aggravation, if possible. The examiner should also address the Veteran’s report of altered gait. c. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a current low back disability that was incurred in or aggravated by his service, to include his report of back pain in February 1980. d. Whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has a low back disability that is caused or aggravated (i.e., worsened beyond the normal progression of the disability) by his service-connected residuals of cyst excision of the left knee. If the examiner finds that the low back disability is aggravated by the service-connected residuals of cyst excision of the left knee, then he/she should quantify the degree of aggravation, if possible. The examiner should also address the Veteran’s report of altered gait. Provide a rationale for every opinion. 3. Review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case to the Veteran and his representative. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Arif Syed, Counsel