Citation Nr: 1806661 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-15 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right leg disability. 2. Entitlement to service connection for a right leg disability. 3. Entitlement to service connection for a bilateral foot disability, including as due to service-connected left knee sprain. 4. Entitlement to service connection for a low back disability, including as due to service-connected left knee sprain. 5. Entitlement to service connection for a right hip disability, including as due to service-connected left knee sprain. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a left leg disability. ATTORNEY FOR THE BOARD R. E. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1982. The Veteran died in March 2016, and the appellant is the Veteran's widow. She has been substituted for the Veteran to pursue this appeal. 38 U.S.C. § 5121A (2012). A June 2017 VA Form 8 confirms that the appellant has been recognized by VA as substituting for the Veteran. This matter came before the Board of Veterans' Appeals (Board) on appeal from February 2011 and September 2013 rating decisions of the regional office (RO) in Los Angeles, California. The bilateral foot, low back and right hip claims were remanded by the Board in November 2015 to obtain VA medical examinations and opinions. The Veteran died before he could be provided VA medical examinations. However, VA medical opinions were obtained based on a review of the deceased Veteran's file (Medical opinions are located in an October 2016 entry in Virtual VA). As such, there has been substantial compliance with the remand orders. Additional VA treatment records added to the file since a November 2015 statement of the case do not discuss the Veteran's left leg, right leg or right knee. Consequently remand of the left leg, right leg or right knee claims for RO review of the newly received records is not indicated. FINDINGS OF FACT 1. The Veteran did not appeal the February 2011 rating decision to the extent that it denied service connection for a right leg disability. 2. Evidence received since the February 2011 rating decision is material to the Veteran's claim for service connection for a right leg disability. 3. The Veteran did not develop a right leg disability that was related to service or that was secondary to the Veteran's service-connected left knee disability. 4. Bilateral foot disability, diagnosed many years after discharge from service, was unrelated to service, including the two instances he was treated in service for foot pain. 5. A low back disability, diagnosed many years after discharge from service, was unrelated to service, including the one time he was treated for low back pain during service. 6. A right hip disability was not manifest during service and was not attributable to service. 7. A bilateral foot disability, a low back disability, and a right hip disability were not caused or aggravated by the Veteran's service-connected left knee disability. 8. The Veteran was not shown to ever have any disability of the right knee. 9. A left leg disability was not manifested during service, was not attributable to service, and was not secondary to a service-connected left knee disability. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of service connection for a right leg disability has been received and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for a right leg disability, to include as secondary to service-connected left knee sprain, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 3. The criteria for service connection for bilateral foot disability, to include as secondary to service-connected left knee sprain, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 4. The criteria for service connection for a low back disability, to include as secondary to service-connected left knee sprain, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 5. The criteria for service connection for a right hip disability, to include as secondary to service-connected left knee sprain, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 6. The criteria for service connection for a right knee disability have not been met. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 7. The criteria for service connection for a left leg disability, to include as secondary to service-connected left knee sprain, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A (2012), and implemented at 38 C.F.R. § 3.159 (2017), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. The duty to notify has been met. The appellant has not alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). No such arguments have been raised. In light of the foregoing, nothing more is required. The Veteran's VA treatment records have been associated with the record. In July 2013 the Veteran wrote to VA that his Kaiser Permanente and other non-VA medical records were unavailable. The Veteran was provided VA medical examinations and VA medical opinions were obtained. Although many service treatment records (STRs) were obtained, the STRs do not include a discharge examination report. In July 2016 the RO wrote to the appellant to see if she had any additional STRs for the Veteran. She did not respond to this letter. The Board is satisfied that VA has made reasonable efforts to obtain relevant records and evidence. In sum, the Board is satisfied that the originating agency properly processed the appellant's claims after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Law and Regulations A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of arthritis may be presumed to have been incurred or aggravated if arthritis is manifested to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because arthritis was not medically diagnosed within one year of discharge and there is no evidence of record to suggest that arthritis was present to a compensable degree within one year of discharge. Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). 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). III. Claim to Reopen 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). If it is determined that new and material evidence has been submitted, the claim must be reopened. Manio v. Derwinski, 1 Vet. App. 140 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that 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. Id. 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 Veteran's initial claim for service connection for a right leg disability was denied by the RO in February 2011. To the extent that the Veteran did not appeal the denial of his claim for service connection for a right leg disability and the decision became final. The Veteran's request to reopen his claim for service connection for a right leg disability was received in February 2012. The evidence of record prior to the February 2011 final rating decision included the Veteran's service treatment records. These records showed no evidence of a right leg disability. The evidence obtained since the February 2011 rating decision includes May 2007 and May 2012 VA medical records showing that the Veteran had right leg numbness and pain. Since the evidence of record at that time of the February 2011 rating decision did not show evidence of right leg disability the newly obtained evidence is material to the claim. Although the May 2007 VA treatment record is dated prior to the February 2011 rating decision, the record indicates that it was not obtained and associated with the record until after that decision. Accordingly, the Board finds that new and material evidence has been received to reopen the claim for service connection for a right leg disability. IV. Right Leg Disability The Veteran initially claimed service connection for a right leg disability in March 2010. At that time he reported that his right leg disability began in 2007. In February 2012, he asserted that he was entitled to secondary service connection for his right leg disability. During his lifetime, the Veteran's only service-connected disability was of the left knee. He had a 10 percent rating for limitation of flexion of the left knee due to left knee sprain with degenerative changes. He also had a 10 percent rating for instability of the left knee. The Veteran's STRs reveal no right leg complaints or treatment. The first right leg complaint of record was a May 2007 VA treatment record. This record noted that the Veteran had a three week history of right leg radiation pain starting from the lumbar spine region. He reported that he was working on a construction project when it started. He denied acute trauma and stated that he had no previous history of back pain. VA treatment records in May 2012 show complaints of right leg numbness. The record contains no medical nexus opinion relating a right leg disability to active duty or to the Veteran's service-connected left knee disability. The Board notes that VA did not obtain a medical opinion on this matter. Nevertheless, inasmuch as the evidence of record does not demonstrate any in-service occurrence or onset of a right leg disorder, or of any aggravation of a right leg disorder by the left knee disability, a VA medical opinion was unnecessary here. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the Veteran, in which case an examination may not be required); see also Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (the determination as to whether there was an event, injury, or disease in service is a finding of fact for the Board.) In assessing the claim, the Board has considered the Veteran's and the appellant's lay assertions that the Veteran incurred a right leg disorder due to service, or that he had a right leg disability that was aggravated by the left knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the Veteran developed right leg disability that is a result of service, or is secondary to a service-connected disability, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In this case the most probative evidence of record are the medical records that show no complaints of right leg disability until many years after discharge from service and which do not relate any reported right leg disability to service. The most probative evidence fails to indicate any secondary relationship between the Veteran's service-connected left knee disability and the reported right leg disability. Accordingly, the preponderance of the evidence is against the Veteran's claim and service connection for a right leg disorder is not warranted. V. Bilateral Foot Disability The Veteran submitted his claim for service connection for bilateral foot disability in March 2010. He indicated that he had problems with his feet in 1980 while in Panama, and again in 1981 while he was at Fort Ord. The STRs show that in July 1980 the Veteran had a tender left foot. The examiner noted that the left foot appeared to have calluses. The assessment was callus versus tinea pedis. A July 1982 STR notes that the Veteran was seen for pain in both feet due to calluses. On VA examination in October 2010, the Veteran reported that he had had left foot pain since service. He attributed the pain to injuring his foot doing hikes and marches while deployed in the Panama jungles. The diagnoses were left and right foot strain and left foot hallux valgus, with osteoarthritis. The VA examiner opined that based on limited records available, it was less likely than not that the Veteran's left foot disability was related to service. A VA physician reviewed the Veteran's records in October 2016 (Report located in Virtual VA). He opined that it was less likely as not that the Veteran's post service right and/or left foot disability had its onset during service. He further opined that the Veteran's left and/or right foot disability was not caused or aggravated by the Veteran's service-connected left knee disability. The VA physician noted that the Veteran's callouses were reported to be symmetrical and bilateral indicating that it was normal wear and tear and not (due to) a left-sided knee condition. The Board has considered the Veteran's and appellant's assertions that bilateral foot disability resulted from service, or was secondary to the service-connected left knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the Veteran developed right and/or left foot disability that is a result of service, or is secondary to a service-connected disability, such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Even if the Veteran or appellant were competent to provide an etiological opinion, their statements are still outweighed by the more probative VA medical opinions. The Board places greater probative weight on the findings of the health care professionals over the Veteran's and appellant's lay assertions of etiology of the Veteran's bilateral foot disability. The preponderance of the probative evidence weighs against the claim. Consequently, service connection for bilateral foot disability, including as secondary to service-connected left knee disability, is not warranted. VI. Low Back Disability The Veteran submitted his claim for service connection for low back disability in March 2010. He indicated on his claim form that his back problems began in 1986 (post-service). The STRs show that in January 1981 the Veteran fell in the barracks and hurt his back. The assessment was low back pain secondary to trauma. The Veteran was given a heating pad, told to stay in bed for 24 hours, and told not to engage in strenuous physical activity for 72 hours. The remainder of the STRs are silent to any low back complaints or treatment. A May 2007 VA treatment record notes that the Veteran had a three week history of right left radiation pain starting from the lumbar spine region. The Veteran stated that he was working on a construction project when that started. He denied any acute trauma and stated that he had no previous history of back pain. On VA examination in October 2010, the Veteran reported that he had had back pain since 1980. He asserted that he injured his back repelling from helicopters. X-rays revealed degenerative arthritis and joint irregularity, spondylosis and mild disc degeneration. The Veteran was also diagnosed with intervertebral disc syndrome of the low back. The VA examiner opined that it was less likely than not that the Veteran's back condition was associated with service. She noted that that there were no records available from 1980 to 2007 to determine if the Veteran had chronic back pain from injuries from a parachute jump. A VA physician reviewed the Veteran's records in October 2016 (Report located in Virtual VA). He opined that it was less likely as not that the Veteran's post service back disability had its onset during service. He further opined that the Veteran's low back disability was not caused or aggravated by the Veteran's service-connected left knee disability. He noted that the one back injury documented in the STRs was minor and self-limited, with no follow up treatment. He noted that there was no back treatment for 34 years after military discharge. He further noted that there was no reference by the podiatrist or primary care physicians of any relationship between the Veteran's low back and his service-connected left knee disability. With regard to his opinion that the low back was not aggravated by the service-connected left knee, he noted that there was no mention of an abnormal gait in the STR's or VA medical records. The Board has considered the Veteran's and appellant's assertions that the low back disability resulted from service, or was secondary to the service-connected left knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the Veteran developed low back disability that was a result of an injury during service or was secondary to a service-connected disability, such falls outside the realm of common knowledge of a lay person. See Jandreau. Even if the Veteran or appellant were competent to provide an etiological opinion, their statements are still outweighed by the more probative VA medical opinions. The Board places greater probative weight on the findings of the health care professionals over the Veteran's and appellant's lay assertions of etiology of the Veteran's low back disability. The preponderance of the probative evidence weighs against the claim. Consequently, service connection for a low back disability, including as secondary to service-connected left knee disability, is not warranted. VII. Right Hip Disability The Veteran submitted his claim for service connection for right hip disability in March 2010. He indicated on his claim form that his right hip disability began in 2007, more than 24 years after discharge from service. The STRs are silent to any right hip complaints or treatment. The post service VA treatment records show no right hip complaints until May 2007 at which time the Veteran reported right hip pain radiating to the right foot for the past 25 days. March 2013 VA x-rays of the right hip joint revealed no significant bone or joint abnormality. In January 2014 the Veteran reported a two week history of chronic right hip and back pain. The diagnosis was back pain/sciatica. The October 2010 VA examiner did not provide an examination of the Veteran's right hip. She did note that a May 2007 VA treatment record revealed complaints of right hip pain radiating to the right foot. A VA physician reviewed the Veteran's records in October 2016 (Report located in Virtual VA). He opined that it was less likely as not that the Veteran's had a post service right hip disability that had its onset during service. He noted that the STRs showed no right hip treatment and that right hip complaints were first shown 34 years after discharge from the military. The VA physician further noted that the chronic right hip pain diagnosed 34 years after discharge from service is not a recognized diagnosis. The VA physician also opined that the Veteran's right hip complaints were not secondary to the Veteran's service-connected left knee disability. He noted that there was no reference by the Veteran's primary care physician of any causal relationship. He noted that the idea of the right hip being secondary to the Veteran's service-connected left knee disability was the notion of the appellant that had no medical support. The Board has considered the Veteran's and appellant's assertions that the right hip complaints resulted from service, or were secondary to the service-connected left knee disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue here, whether the Veteran developed a right hip disability that is a result of service or that was secondary to a service-connected disability, such falls outside the realm of common knowledge of a lay person. See Jandreau. Even if the Veteran or the appellant were competent to provide an etiological opinion, their statements are still outweighed by the more probative VA medical opinions. The Board places greater probative weight on the findings of the health care professionals over the Veteran's and appellant's lay assertions of etiology of the Veteran's right hip complaints. The preponderance of the probative evidence weighs against the claim. Consequently, service connection for a right hip disability, including as secondary to service-connected left knee disability, is not warranted. VIII. Right Knee The Veteran submitted his claim for service connection for a right knee disability in December 2011. The Veteran's STRs reveal no right knee complaints or treatment. The post service medical records also reveal no right knee complaints or treatment. On VA examination of the knees in September 2013, the Veteran had no complaints regarding the right knee, he had full range of motion of the right knee without pain, and he had no instability of the right knee. The examination revealed no right knee abnormalities. Although the Veteran requested service connection for a right knee disability, he and the appellant never alleged that the Veteran had any specific right knee disability or complaints. The medical and lay evidence fails to indicate that the Veteran ever had any right knee disability. In the absence of evidence of a disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection a right knee disability is not warranted. IX. Left Leg Disability The Veteran submitted his claim for service connection for a left leg disability in December 2011. The Veteran's STRs reveal no left leg complaints or treatment. A July 2010 VA treatment record indicates that the Veteran reported left leg numbness. A May 2012 VA treatment record shows complaints of left leg pain. The Veteran reported that he had had the numbness and pain off and on for several years. The preponderance of the evidence indicates that the Veteran did not have any left leg complaints during service or for many years after discharge from service. The Veteran and the appellant did not provide any details as to when they thought the Veteran first developed any left leg disability and did not provide any details as to what left leg disability they thought the Veteran had. In this case there is no probative evidence indicating that the Veteran ever had any left leg disability that was manifested during service or was otherwise related to service. The Board further notes that there is no evidence indicating that that there is any left disability that is caused or aggravated by the Veteran's service-connected left knee disability. Accordingly, the preponderance of the evidence is against the claim and service connection for a left leg disability is not warranted. ORDER New and material evidence having been obtained, the claim of entitlement to service connection for a right leg disability is reopened. Entitlement to service connection for a right leg disability is denied. Entitlement to service connection for a bilateral foot disability, including as due to service-connected left knee sprain, is denied. Entitlement to service connection for a low back disability, including as due to service-connected left knee sprain, is denied. Entitlement to service connection for a right hip disability, including as due to service-connected left knee sprain, is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left leg disability is denied. ______________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs