Citation Nr: 18155318 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-62 790 DATE: December 4, 2018 ORDER New and material evidence having not been received, the application to reopen a previously denied claim of service connection for post-operative total left hip replacement is denied. New and material evidence having not been received, the application to reopen a previously denied claim of service connection for a left knee condition, claimed as a left leg condition is denied. Entitlement to service connection for a bilateral shoulder condition (claimed as secondary to non-service connected left hip and left leg conditions) is denied. Entitlement to service connection for a right hip condition (claimed as secondary to non-service connected left hip and left leg conditions) is denied. FINDINGS OF FACT 1. The last final adjudication denying the claims of service connection for a post-operative left hip condition and a left leg condition was a March 2000 Board decision. 2. The evidence added to the record since the last final denial does not relate to unestablished facts necessary to substantiate claims of service connection for post-operative total left hip replacement or a left knee condition, claimed as left leg condition. 3. The Veteran’s right hip condition is not proximately due to or the result of service-connected disease or injury. 4. The Veteran’s left shoulder condition not proximately due to or the result of service-connected disease or injury. 5. The Veteran does not have a current diagnosis of a right shoulder condition. CONCLUSIONS OF LAW 1. As the evidence received subsequent to the March 2000 rating decision is not new and material, the requirements to reopen the claim for entitlement to service connection for post-operative total left hip replacement have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 2. As the evidence received subsequent to the March 2000 rating decision is not new and material, the requirements to reopen the claim for entitlement to service connection for a left knee condition, claimed as a left leg condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a right hip condition (claimed as secondary to non-service connected left hip and left leg conditions) have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a bilateral shoulder condition (claimed as secondary to non-service connected left hip and left leg conditions) have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from December 1953 to November 1955. The Veteran was scheduled to appear for a videoconference hearing before a Veterans Law Judge in August 2018. However, prior to the hearing being held, the Veteran cancelled his hearing request. As such, the Board will proceed to adjudicate the claim on appeal. The Veteran’s service treatment records were destroyed in the 1973 fire at the NPRC. The Board notes that VA was able to obtain some of the Veteran’s service treatment records, which were associated with the claims file in January 2016. Nevertheless, it appears that the majority of the Veteran’s service treatment records remain missing. In such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board acknowledges the Veteran’s representative’s argument that the appeal must be remanded to obtain his treatment records from military hospitals. However, the appellant was formally notified that the Veteran’s service treatment records (STR)s for his period of active duty were unavailable. Additionally, VA has made all reasonable efforts to obtain all treatment records. 38 U.S.C. § 5103A(c) (2), (3). Further, the evidence of record does not suggest, that these additional treatment records provides a nexus between the Veteran’s asserted disabilities and his military service, so the absence of STRs does not prejudice the appellant in the instant case. Based on the foregoing, the Board finds that the record as it stands includes adequate competent evidence to allow it to adjudicate the appeal, and no further action is necessary. See 38 C.F.R. § 3.159(c). New and Material Evidence In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999); see 38 U.S.C. § 5103A (eliminates the concept of a well-grounded claim). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for the purpose of establishing whether new and material evidence has been received, the credibility of the such evidence is to be presumed unless “patently incredible” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim for service connection for post-operative total left hip replacement and for a left knee condition, claimed as a left leg condition The Veteran is claiming entitlement to service connection for a left hip and left knee disorder. These claims were originally denied on the merits in a September 1983 Board decision on the basis that these disorders were congenital in nature and there were no indications that either defect worsened during active duty. These claims were subsequently denied on a number of subsequent occasions, most recently in a March 2000 Board decision, on the basis that no new and material evidence had been submitted to reopen the claims of service connection for total left hip replacement and a left leg condition. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it and is now final. See Buie v. Shinseki, 24 Vet. App. 242. This represents the last final denial of these claims. The Veteran submitted a claim to reopen his claim for service connection on December 15, 2015. In an February 2016 rating decision, the RO denied service connection for total left hip replacement and for a left leg condition as no new and material evidence had been received. The Veteran submitted a notice of disagreement (NOD) in October 2016 and his appeal was perfected following an issuance of a December 2016 statement of the case (SOC). After a review of the evidence, the Board finds that the claims for service connection for post-operative total left hip replacement and a left leg condition should not be reopened. Since the last final denial in March 2000 for service connection for post-operative total left hip replacement, the Veteran has sought treatment for left hip pain in 2003, 2015, and 2016. While his medical treatment records reveal that the Veteran suffers from left hip pain, they merely show continued post-service treatment. Additional evidence that merely demonstrates that the Veteran continues to receive treatment for his post-operative total left hip replacement and does not provide evidence that the disability is service connected, is not new and material. See Cox v. Brown, 5 Vet. App. At 99. In regard to the Veteran’s claimed left leg condition, no medical treatment records have been submitted since the last final denial that reveal treatment for or a diagnosis of a left leg condition. Additionally, the Board has searched the records and has not found any medical evidence, such as a medical opinion, which supports the Veteran’s contention that his post-operative total left hip replacement and left leg condition was a result of or aggravated by his service. Accordingly, the Board finds that new and material evidence has not been submitted in connection with the claim of service connection for post-operative total left hip replacement and the claim is not reopened. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. 2. Entitlement to service connection for a bilateral shoulder condition and a right hip condition (claimed as secondary to non-service connected left hip and left leg conditions) The Veteran asserts that he is entitled to service connection for his bilateral shoulder condition and right hip condition. He contends his bilateral shoulder condition and right hip condition is secondary to his non-service connected left hip and left leg conditions. Left shoulder As discussed above, the Veteran’s service treatment records are unavailable for review. The Veteran’s post service treatment records dated December 2000 reveal a complaint of left lateral shoulder pain for the past six months. The Veteran’s x-ray results showed no fracture or dislocation, however moderate degenerative joint disease was noted. The Board notes that the Veteran’s diagnosis of a left shoulder condition was not until approximately 45 years after he left active service. Therefore, continuity is not established based on the clinical evidence. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed condition and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed condition to active duty or a service-connected disability, despite his contentions to the contrary. In May 2016, the Veteran sought treatment for chronic left shoulder pain and limitation of motion at Beckley VA medical center. The Veteran reported his pain has increased and has a restriction in motion of his left shoulder. The treating physician noted that the Veteran was able to still function and use his upper extremity. Additionally, he noted the Veteran’s x-ray results showed rather severe glenohumeral osteoarthritis in his left shoulder. A September 2016 examination revealed severe degenerative joint disease of the left shoulder and the Veteran reported difficulty raising his arm above his head. However, while the Veteran has a current diagnosis of a left shoulder condition, the Board finds that his treatment records do not reflect that his left shoulder condition is related to active duty, nor has any physician indicated that such a relationship exists. Right shoulder A review of the record does not show a current diagnosis of a right shoulder condition. While a finding that the Veteran had a disability “at some point during the processing of his claim,” can satisfy the service connection requirement for manifestation of current disability, the weight of the evidence does not demonstrate that the Veteran has been diagnosed with the claimed conditions any time since he filed his current claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The medical evidence of record does not show a current diagnosis of a right shoulder condition. In fact, during a May 2016 examination at Beckley VA medical center, the treating physician noted that the Veteran’s right shoulder showed no restriction on active range of motion. Further, the medical evidence of record does not show complaints of, treatment for, or a diagnosis of the Veteran’s claimed right shoulder condition. While the Veteran is competent to report having pain or discomfort, the evidentiary record does not reflect any current probative diagnosis of a right shoulder disorder. See Sanchez-Benitez, supra (a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted; “pain alone, without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted”). The Board notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board’s categorical statement that ‘a valid medical opinion’ was required to establish nexus, and that a layperson was ‘not competent’ to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Board notes that the Veteran has not identified any probative diagnosis of a right shoulder condition. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Unless there is a current disability, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Right hip condition The Veteran contends that his right hip condition is secondary to his non-service connected left hip condition. Specifically, he asserts that his right hip has had to take more pressure due to his left hip problems. The Veteran’s post service treatment records reveal that he underwent right hip replacement surgery in 2003. As part of this claim, the Board recognizes the statements regarding the Veteran’s history of symptoms. In this regard, while the Veteran is not competent diagnose a condition such as a right hip condition, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he and others are nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is insufficient to warrant service connection on the Veteran’s statements alone. The Veteran reported that his right hip has taken more pressure due to his left hip condition. In this case, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of a right hip condition after separation from service as he was not diagnosed with a hip condition until 48 years later. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed condition and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed condition to active duty or a service-connected disability, despite his contentions to the contrary. While the Veteran has undergone a right hip replacement, the Board notes that no additional medical evidence has been submitted reflecting complaints of or treatment for a right hip condition. Therefore, the Board finds that the Veteran’s treatment records do not reflect that his right hip condition is related to active duty, nor has any physician indicated that such a relationship exists. In adjudicating these claims, the Board has specifically considered the statements made by the Veteran relating his claimed disorders to service. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran’s statements as to the etiology of his bilateral shoulder and right hip condition 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. Jandreau, 492 F.3d at 1377, n. 4. To the extent that the Veteran’s statements in this regard are competent, the Board finds the specific, reasoned opinions of the trained health care professionals who conducted the medical examinations to be of greater probative weight than the Veteran’s more general lay assertions. The Board notes the Veteran’s contentions that his bilateral shoulder condition and right hip condition are secondary to his left hip and left leg condition. However, an underlying disease or injury must first be service connected for the Veteran to claim secondary service connection. 38 C.F.R. 3.310. Therefore, the possibility of secondary service connection is precluded. In reaching this conclusion, the Board finds that the preponderance of the evidence is against these claims. As such, the benefit of the doubt rule is not for application, and the claims for service connection for a bilateral shoulder condition and a right hip condition must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel