Citation Nr: 18148458 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-11 245 DATE: November 7, 2018 ORDER As new and material evidence to reopen a claim for service connection for left knee disability has been received, the claim is reopened. Entitlement to service connection for degenerative joint disease and meniscus tear of the left knee (collectively referred to as left knee disability) is denied. Entitlement to service connection for patellofemoral syndrome of the right knee (right knee disability) is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for irritable bowel syndrome (IBS) is denied. REMANDED Entitlement to service connection for skin rash is remanded. Entitlement to service connection for migraines, claimed as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. A January 2003 rating decision denied service connection for a left knee condition. The Veteran did not appeal that rating decision and new and material evidence was not received within one year of the decision. 2. Evidence received since the January 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for left knee condition and raises a reasonable possibility of substantiating the claim. 3. There is no evidence in the record reflecting the onset of left knee disability during service, or within one year of service, and there is no evidence of a nexus between the Veteran’s current left knee disability and his active service. 4. There is no evidence in the record reflecting the onset of right knee disability during service, and there is no evidence of a nexus between the Veteran’s current right knee disability and his active service. 5. The Veteran does not have a current diagnosis of GERD. 6. The Veteran does not have a current diagnosis of IBS. CONCLUSIONS OF LAW 1. The January 2003 rating decision that denied the claim for service connection for left knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the January 2003 rating decision is new and material and the criteria for reopening of the claim for entitlement to service connection for a left knee disability, therefore, been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for degenerative joint disease and status-post meniscus tear repair of the left knee are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for patellofemoral syndrome of the right knee are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for IBS are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to June 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that after certification of the appeal to the Board, additional VA examination reports and VA treatment records were associated with the record without a waiver of initial agency of original jurisdiction (AOJ) review. See 38 C.F.R. §§ 20.1304. However, this evidence does not pertain to the claims herein decided, and as to the issues remanded, the AOJ will have opportunity to review the additional evidence received. Claim to Reopen Service Connection for Left Knee Disorder Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). By way of background, the Veteran’s initial claim for service connection for left knee condition was denied in a January 2003 rating decision. The Veteran was notified of the denial in that same month, but he did not appeal this issue, as indicated above. The Veteran filed an application to reopen a claim for a knee condition in March 2006, and the RO denied his application to reopen on the basis that no new and material evidence was received in the August 2006 rating decision, but he did not submit a notice of disagreement within one year of that decision. The Veteran did not submit new and material evidence within the one-year appeal period, and no additional service records have been received at any time pertinent to the previously disallowed claims for service connection, warranting re-adjudication of the claim (see 38 C.F.R. § 3.156(c)). The denial, therefore, became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran filed an application to reopen a claim for bilateral knee disorders in March 2014, and the RO reopened his left knee claim, but denied it on the merits in the March 2015 rating decision, currently on appeal. The evidence received since the January 2003 rating decision includes a July 2013 private medical opinion that indicates that the Veteran’s left knee disability may be related to his reported in-service injury. As this evidence relates to the bases for the prior denial and raises a reasonable possibility of substantiating the claim for entitlement to service connection for a left knee disability, reopening of the claim is warranted. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). Service Connection Claims The Veteran claims service connection is warranted for GERD, IBS, and right and left knee disabilities. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) the existence of a current disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). In addition, certain chronic diseases, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101 (3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307 (a), 3.309(a). Pursuant to 38 C.F.R. § 3.303 (b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). “[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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). In relevant part, 38 U.S.C. 1154 (a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Left Knee The probative evidence reflects that the Veteran has a current knee disability diagnosed as degenerative joint disease and status-post left knee meniscus repair that is not etiologically related to his active service. A March 1981 service treatment record (STR) reflects the Veteran reported that his left knee locked since he injured it while roller skating and he fell into a wall. He indicated that he was seen at a hospital and X-rays were taken and he was told nothing was broken. A June 1982 Report of Medical Examination reflect his lower extremities were normal. The Veteran denied a trick or locked knee. A December 1982 STR reflects the Veteran reported continued left knee pain since March 1981. He had full range of motion and there was no meniscal or cruciate instability, no effusion, and no synovitis. The physician indicated there was no acute or chronic internal derangement of the knee. A May 1986 Report of Medical Examination for reenlistment reflects the Veteran reported he had left knee pain during bootcamp, which was noted to have resolved. A March 2000 Report of Medical Examination reflects a normal evaluation of the lower extremities. There was no report of a “trick” or locked knee. A July 2002 x-ray of the left knee indicated the skeletal structure were unremarkable with no fractures, dislocations, or lytic or blastic lesions. The joint space was preserved. The impression was a normal left knee. An October 2002 retirement examination reflects the Veteran reported his left knee locks and swells. During an examination, the examiner noted the Veteran reported that his left knee tends to lock on him and has been bothering him for the last twenty years, but without instability. The Veteran reported it swells with increase in activity. Examination of the left and right knees demonstrated no abnormalities on inspection or palpation. He had normal motion. There was negative drawer test and McMurray test. The examiner concluded there was no pathology evidence to render a diagnosis. A May 2013 VA treatment record reflect the Veteran had chondromalacia of the left knee and medial meniscus tear. A July 2013 private medical opinion that indicates that the Veteran’s was treated for his left knee disability and that the Veteran reported that he injured his left knee during service and he has had pain since. The physician opined his left knee osteoarthritis may be related to his military service. In a March 2015 VA examination report reflects diagnoses of left knee degenerative joint disease and status-post left knee meniscus repair. The examiner opined it is less likely than not that the Veteran’s left knee disability was related to service because the Veteran was never seen or evaluated for any left knee complaints throughout his twenty years of service. He mentions left knee pain at time of physical in 1986, but states it was one time in bootcamp and resolved. The examiner noted that the Veteran subjectively mentioned at time of retirement VA physical that he had knee pain for 20 years, but knee exam was performed and was normal ROM, without pain and negative McMurray’s test for meniscus tear. Current orthopedic surgery in 2013 showed meniscus tear and DJD. However, this was more than ten years after separation physical that showed negative exam for meniscus tear and negative x-rays for DJD during service. Based on the foregoing, the Board finds that service connection for the left knee disability is not warranted. The Veteran has a diagnosis of degenerative joint disease and status-post left knee meniscus repair. As such, the Veteran has a current disability and the first prong of service connection has been met. However, as there is no evidence that the Veteran was diagnosed with arthritis within a year of service or this disease otherwise manifested within a year of service, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). As for service connection on a direct basis, while the Veteran complained of left knee pain in service, the preponderance of the evidence is against a relationship between any current left knee disability and the pain treated in service. Initially, the Board has also considered the Veteran’s contentions in support of a nexus that his left knee disability is related to service. However, the Veteran’s testimony as to the etiology of his left knee disability is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). See also Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). The Veteran’s statements in this regard are therefore not competent. The Board notes that there are competing opinions of record. However, no rationale was offered in the July 2013 private positive opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. There is no indication that the private physician reviewed pertinent medical evidence in the claims file, military personnel records, or STRs. Instead, the opinion appears to be based entirely on the Veteran’s self-reported service and medical history, despite the negative x-rays for arthritis or any other left knee abnormality during service, to include during his retirement exam. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (an opinion that is based on review of the medical evidence is more probative than an opinion that is based on the Veteran’s reported history). Finally, that opinion was speculative. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor’s letter stating probability in terms of “may or may not” was speculative). In contrast, the March 2015 VA examiner, which concluded that the Veteran’s left knee degenerative joint disease and meniscus tear were less likely than not related to the Veteran’s military service, is considered probative as it was definitive, based upon a complete review of the Veteran’s entire claims file, and supported by a rationale, specifically the lack of X-ray evidence of arthritis in 2002 at separation of service, as well as negative McMurray’s and drawer test and normal range of motion at that time. Consequently, the Board gives more probative weight to the March 2015 VA examiner’s opinion than to the July 2013 private opinion. Accordingly, service connection for left degenerative joint disease and status-post left knee meniscus repair must be denied based on the evidence of record at this time. See 38 C.F.R. § 3.303. As the weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Right Knee The Veteran filed an application for service connection for right knee disability in November 2014. However, he did not make any specific comment regarding its onset or why he believes this disability should be service connected. The Veteran’s VA treatment records reflect a diagnosis of right knee patellofemoral syndrome during the pendency of this claim. However, there is no indication in the Veteran’s service treatment records of any right knee complaints while in service. Finally, the current treatment reports do not demonstrate a reported history of continuity of symptomatology. As noted above, there are no lay statements from the Veteran regarding a connection between his current right knee disability and his active duty service, and no contentions of continuity of symptomatology. As there is therefore no indication that the current disability might be associated with the Veteran’s service, there is no requirement that VA obtain a medical opinion on this issue. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In sum, as there is no evidence of an in-service incurrence of right knee problems or of a nexus between the current disability and the Veteran’s service, service connection for right knee disability is not warranted. See 38 C.F.R. § 3.303. As the weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. GERD and IBS For the following reasons, the claims for GERD and IBS must be denied. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, the Board cannot draw a bright line at the date of claim but must consider all the evidence of record in determining whether the Veteran has met the current disability requirement. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). In addition, a “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing “eligibility for disability compensation for service connected disabilities”). Recently, the Federal Circuit held that pain can constitute disability if it results in impairment and is due to disease or injury in service. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. April 3, 2018). Here, the competent, probative evidence establishes that the Veteran does not have the GERD and IBS disabilities for which service connection is sought, therefore, there can be no valid claims for service connection. As such, service connection for GERD and IBS must be denied because the first essential criterion for an award of service connection-evidence of a current disability upon which to predicate such an award-has not been met. Initially, a veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470. Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau, 492 F.3d at 1376-77. Therefore, the Veteran is competent to report that he has gastrointestinal and esophageal symptoms and issues, however, a chronic disorder such as GERD or IBS is not a medical condition a lay person is competent to diagnose. Id. The Veteran does not have the medical expertise to diagnose himself with such disabilities, nor does he have the medical expertise to provide an opinion regarding its etiology. Thus, his lay assertion that he has a current, specific disorder of GERD and IBS due to his service, lacks any probative value. Turning to the other evidence of record, the Veteran’s post-service records are silent for any complaints or diagnosis of GERD, IBS, or any other gastrointestinal or esophageal disabilities. The Veteran underwent a January 2017 intestinal condition Disability Benefits Questionnaire reflects the Veteran reported diarrhea and constipation. The examiner indicated the Veteran does not have irritable bowel syndrome or any other intestinal condition. The examiner noted no intestinal or esophageal conditions in his medical history. The examiner based his conclusion that the Veteran does not have IBS on available treatment records and examination of the Veteran. There is no evidence to doubt the examiner’s credibility. See 38 C.F.R. 4.2. Finally, esophageal disorders, including GERD and hiatal hernia, were not identified as part of the Veteran’s medical history. Although the Veteran was not provided a VA examination specifically for his claimed GERD, as there no indication in the service or post-service medical records, as well as the VA examination that the Veteran currently has GERD, the Board finds that the low threshold for obtaining a VA examination has not been met in this case. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, service connection for GERD or IBS is not warranted on any basis and those claims must be denied at this time. See 38 C.F.R. § 3.303. As the weight of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND With regard to the claimed skin disability, the Veteran reported in the December 2016 Disability Benefits Questionnaire that he has a skin rash that comes and goes since his service in 1982. He reports that his body has changed and he sweats a lot and that the rash returned in 2014. The examiner indicated there was no pathology to render because there was no skin diagnosis. Notably, a 2014 medical treatment record notes the Veteran had a heat rash. However, despite not having a skin rash upon examination, the examiner did not address the etiology of the heat rash that was diagnosed in 2014. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Thus, an opinion should be obtained as to whether his heat rash, even if now resolved, is related to service, to include the documented in-service skin problems. See September 1993, July 1999, and March 2002 STRs. With regard to the claimed migraines, the Veteran claims that his migraines are secondary to his service-connected PTSD. The Veteran is competent to attest that he suffers from migraines and the Veteran has not been provided a VA examination as to this disability, thus, a VA examination is warranted. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As the matters are being remanded, updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any and all VA treatment records. 2. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any skin disorders are related to his service. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state any and all skin disorders found during the appeal period, to include the noted heat rash diagnosed in 2014. Then, for any skin disorders found, to include any resolved heat rash, the examiner should opine whether such at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service, to include the documented September 1993, July 1999, and March 2002 in-service complaints. In addressing the above, the examiner should address the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any headache disorder is related to his service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner should state whether the Veteran has a headache disorder. If so, then the examiner should opine whether his headache disorder at least as likely as not (50 percent or greater probability) began in service or is otherwise the result of military service. Next, if the examiner finds that the Veteran’s headaches are not directly related to service, the examiner should also opine whether his headaches at least as likely as not are (a) caused by; or, (b) aggravated (i.e., chronically worsened) by his service-connected psychiatric disability. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should address the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell