Citation Nr: 18155216 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 18-39 908 DATE: December 3, 2018 ORDER New evidence having been received, reopening of the claim of entitlement to service connection for left knee degenerative changes and patellar spur condition (claimed as a left knee condition) is granted. Entitlement to service connection for left knee degenerative changes and patellar spur condition (claimed as a left knee condition) is denied. Entitlement to a service connection for a right thigh scar is denied. Entitlement to service connection for right lower extremity peripheral neuropathy is denied. Entitlement to service connection for right lower extremity peripheral neuropathy is denied. FINDINGS OF FACT 1. An August 2013 rating decision denied, in pertinent part, service connection for a left knee condition. The Veteran did not appeal that decision or submit new and material evidence within one year of its issuance. New and material evidence has been submitted since this denial. 2. The preponderance of the evidence shows that a left knee condition was not present in service or until many years thereafter and it is not related to service or to an incident of service origin. 3. The probative, competent evidence is against a finding that the Veteran has a scar on his right thigh. 4. The Veteran does not have a current diagnosis of peripheral neuropathy of the left lower extremity. 5. The Veteran does not have a current diagnosis of peripheral neuropathy of the right lower extremity. CONCLUSIONS OF LAW 1. The August 2013 rating decision, which denied service connection for a left knee condition, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the August 2013 rating decision is new and material to the service connection claim for a left knee condition; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a right thigh scarring have not been met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for right lower extremity peripheral neuropathy, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to June 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2016 and October 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). Since the RO last considered the claims on appeal, additional evidence, has been added to the Veteran’s claims file without a waiver of Agency of Original Jurisdiction (AOJ) consideration of this evidence. The additional evidence is duplicative or cumulative of evidence already of record, and it does not have a bearing on the appellate issue herein decided. This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a left knee disability In August 2012, the Veteran filed his original claim for service connection for left knee degenerative changes and patellar spur condition. In an August 2013 rating decision, the AOJ considered his service treatment records and post-service treatment records and noted that there was no objective medical evidence of any persistent in-service diagnosis or treatment for a left knee condition. The AOJ denied service connection for a left knee condition as such neither occurred in, nor was caused by service, or related to service. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See 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 to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence added to the record since the issuance of the August 2013 rating decision includes private medical records submitted in April 2017 relating to the Veteran’s left knee condition. Consequently, new and material evidence has been received and the Veteran’s claim of entitlement to service connection for sleep apnea is reopened. Entitlement to service connection for a left knee disability The Board will now proceed with a review of the Veteran’s claim for service connection for a left knee disability on a de novo basis. As the AOJ considered his claim on the merits in the June 2018 statement of the case, the Board finds no prejudice to the Veteran in adjudicating the merits of such claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his left knee condition had its onset during his military service as he first began experiencing symptoms of such disorder at that time. A review of the Veteran’s service treatment records shows that the Veteran complained of left knee pain in April 1973 and was diagnosed with traumatic arthritis despite imaging of the knee being unremarkable. In the Veteran’s October 1973 separation examination and report of medical history, the Veteran denied any problems with his lower extremities, providing factual evidence against his own claim, and his examination noted that his lower extremities were normal, providing more evidence against this claim. Post-service treatment records from April 1976 do not note any symptoms or abnormal findings involving the Veteran’s left knee. A VA examination was conducted in June 2013. The examiner found some limitation of motion in the Veteran’s left knee and diagnosed the Veteran with degenerative changes and a patellar spur. The examiner opined that it was less likely than not that the Veteran’s left knee conditions were incurred in or caused by the claimed in-service injury. The examiner acknowledged the Veteran’s isolated left knee pain and left knee strain in 1973, but noted the lack of medical records showing a similar diagnosis since the more than 40 years old occurrence. The Board finds the examiner’s opinion to be highly probative. The Veteran submitted a private report of consultation and examination dated March 2017 in which the provider expressed agreement with the diagnoses of degenerative changes and patellar spur in the Veteran’s left knee. The provider also suggested extension of the Veteran’s “service-connected condition of the left knee to include well advanced degenerative joint disease and instability.” See March 30, 2017 Report. In this regard, the Veteran has never been service-connected for a left knee disorder and the provider’s vague description of “well-advanced” degenerative changes does not constitute an opinion that the Veteran’s current left knee conditions were incurred or aggravated in service more than 40 years ago. Additionally, the private provider did not reference what document they reviewed prior to issuing their opinion. Accordingly, this opinion is given less probative value. The Board finds that the preponderance of the evidence is against a finding of service connection for a left knee disability. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a scar on the right thigh The Veteran seeks service connection for a scar on his right thigh. Initially, the Board notes that the Veteran was service-connected for a superficial non-linear stable scar on his left thigh beginning in August 2012. A review of the Veteran’s service treatment records shows that his separation examination in October 1973 notes a 2.5 centimeters scar on his right thigh. However, this is the only notation in his records regarding scarring on his right thigh. Notably, service treatment records are devoid of any other references to a right thigh scar. On examination in September 2017, the examiner noted a scar on the Veteran’s left thigh but found no scars on the Veterans right thigh or any other scars on the Veteran’s lower extremities. A private report of consultation and examination dated March 30, 2017, the provider states that they concur with the Veteran’s service-connected right thigh scar. As noted above, the Veteran is not service-connected for a scar on his right thigh, but rather on his left thigh. The provider does not describe or discuss any of the Veteran’s scars. Consequently, this opinion is granted very little probative value. No one has found two scars (one on each thigh). There is a scar on the left. Congress has specifically limited entitlement to service-connection to cases where such in-service disease or injury has resulted in disability. See 38 U.S.C. § 1110. Hence, where the evidence does not support a finding of current disability upon which to predicate a grant of service connection, there can be no valid claim for that benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no current diagnosis of a right thigh scar that the Board can find to be accurate, the Board concludes that the basic service connection criteria have not been met. Entitlement to service connection for neuropathy of the bilateral lower extremities The Veteran alleges entitlement to service connection for neuropathy in his left and right lower extremities. Based on a review of the claims folder, the Board finds that the competent evidence of record weighs against the claim for service connection. Service treatment records reveal no evidence of peripheral neuropathy of the lower extremities. The Veteran’s service entrance examination and service separation examination reveal normal neurologic findings and the corresponding medical history reports reflect no history of or diagnosis of neuropathy or other neurological disorder. Post-service medical records do not indicate the Veteran has ever been diagnosed with early-onset peripheral neuropathy, or indeed, peripheral neuropathy of any classification and there is no current diagnosis of neuropathy. As there is no diagnosis of peripheral neuropathy of the extremities, the Board concludes that the basic service connection criteria have not been met with respect to these claims. The Veteran has not provided any evidence to the contrary, i.e., any medical opinion or textual evidence indicating the presence of neuropathy of the lower extremities related to his service. The only evidence presented consists of the Veteran’s lay assertions. In this regard, while the Veteran may believe he has a current diagnosis of peripheral neuropathy of the upper and lower extremities, due to exposure to Agent Orange in service, as a lay person, he has not been shown to have specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of neurological disorders requires medical testing and expertise to determine. Thus, his lay opinion regarding both the existence and etiology of peripheral neuropathy is not competent medical evidence. While he can cite problems, he can not diagnose himself. (Continued on the next page)   As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel