Citation Nr: 1807543 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-07 099A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for a right knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to an increased disability rating in excess of zero percent for reactive airway disease (RAD) from April 7, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1980 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the RO in Roanoke, Virginia. The Veteran testified from Roanoke, Virginia, at a September 2017 Board Videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The issue of an increased rating in excess of zero percent for RAD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed October 2000 rating decision denied service connection for a right knee disability finding no evidence of record linking any knee disability to service. 2. The evidence received since the October 2000 rating decisions relates to an unestablished fact of a causal relationship between a right knee disability and service that could reasonably substantiate a claim of service connection for a right disability. 3. The currently diagnosed status-post right knee meniscus tear had its onset during service. CONCLUSIONS OF LAW 1. An October 2000 rating decision denying service connection for a right knee disability became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the October 2000 rating decision is new and material to reopen service connection for right knee disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the Board is reopening and granting service connection for a right knee disability, constituting a full grant of the benefits sought on appeal; there remains no aspect with respect to these issues to be further substantiated; therefore, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist. Reopening Service Connection for Right Knee Disability Generally, when a claim is disallowed, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2006); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 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, 39-41 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App 345, 348 (1998). An unappealed October 2000 rating decision denied service connection for a right knee disability finding no evidence of record linking any knee disability to service. New evidence received since the October 2000 rating decision includes testimony at the September 2017 Board hearing as to the etiology of a right knee disability, to include a 1995 in-service injury while stationed in Korea. The Veteran also testified to in-service treatment for a right knee injury. See September 2017 Board hearing transcript. Such evidence could reasonably substantiate the issue of service connection for a right knee disability, and at the very least, such evidence, when considered with the other evidence of record, triggers the VA Secretary's duty to assist. As such, the new evidence meets the low reopening standard of Shade. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection for a right knee disability. 38 C.F.R. § 3.156(a). Service Connection for Right Knee Disability In this case, the Veteran has been diagnosed with status-post right knee meniscus tear, which does not qualify as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply as to the knee disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran essentially contends developing a right knee disability from sustaining an in-service injury, and that symptoms of the right knee disability have continued since service separation. At the September 2017 Board hearing, the Veteran testified to injuring the right knee while running in 1995. See September 2017 Board hearing transcript. The Veteran also testified to seeking in-service treatment for the right knee, which culminated with post-service surgery in November 2000. Initially, the Board finds that the Veteran is currently diagnosed with a right knee disability. The May 2012 VA examination report specifically notes a right knee medial meniscus tear in 2000. In addition, November 2000 VA treatment records reflect right knee surgery for a meniscus tear. After a review of all the lay and medical evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether there was onset of symptoms of a right knee disability in service and since service separation (i.e., whether a right knee disability was "incurred in" service) that was later diagnosed as a right knee meniscus tear. The evidence weighing in favor of the finding of in-service onset includes the September 2017 Board hearing transcript showing that the Veteran testified to sustaining a 1995 in-service right knee injury while running, and that he sought in-service treatment. The Veteran is competent to report an in-service right knee injury and treatment. Additional favorable evidence includes the Veteran's consistent lay statements demonstrating right knee disability symptoms since service, to include the April 2013 statement reflecting that the Veteran wrote that he injured the right knee in 1995 while stationed in Korea. In addition, a May 2000 VA examination report reflects the Veteran reported symptoms of right knee cracking beginning in 1995. Subsequently, an October 2000 VA radiological examination report reflects the Veteran reported increased right knee pain along the medial joint with the examiner specifically assessing a 1995 "original injury" with right knee meniscal involvement. In addition, a November 2000 VA treatment record reflects right knee surgery to repair the meniscus. In Walker, 708 F.3d 1331, the United States Court of Appeals for the Federal Circuit held that the presumptive theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). While the right knee disability is not a chronic disease listed under 38 C.F.R. § 3.309(a), as indicated above, the Board has nonetheless found the evidence at least in equipoise on the question of whether the Veteran had right knee disability symptoms that began during service and continued since service separation, which was later diagnosed as a right knee meniscus tear (requiring surgery) thus tending to show direct service incurrence. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). As discussed above, however, the Board is granting the service connection claim based on evidence, including that pertinent to service, which establishes that symptoms of the right knee disability began in service and was so directly "incurred in" service. See 38 C.F.R. § 3.303(d). The finding that the Veteran has had right knee disability symptoms since service is supportive of the direct service connection theory of the claim overall because it tends to show that the symptoms that began in service were the basis for the later diagnosed right knee disability. See Horowitz v. Brown, 5 Vet. App. 217, 221-22 (1993) (lay statements are competent on in-service and post-service symptoms - dizziness, loss of balance, hearing trouble, stumble and fall, and tinnitus - that were later diagnosed as Meniere's disease). For these reasons, and after resolving reasonable doubt in the Veteran's favor, the Board finds that the right knee disability was incurred in active service; thus, the criteria for service connection for a right knee disability have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER New and material evidence having been received, the appeal to reopen service connection for a right knee disability is granted. Service connection for a right knee disability is granted. REMAND Increased Rating for Reactive Airway Disease The Veteran generally contends that an increased disability rating is warranted for the service-connected reactive airway disease. Specifically, at the September 2017 Board hearing, the Veteran testified to inhalation therapy beginning, at the latest, in October 2014. The Veteran is in receipt of a zero percent disability rating for the service-connected reactive airway disease under Diagnostic Code (DC) 6699-6602 for the entire rating period on appeal from April 7, 2011 (date of claim for increase). See 38 C.F.R. § 4.97 (2017). As reactive airway disease is not included on the rating schedule, it is rated by analogy to bronchial asthma. Bronchial asthma is rated, in part, based upon the results of pulmonary function tests (PFTs), specified in terms of forced expiratory volume in one second (FEV-1) and forced vital capacity (FVC). 38 C.F.R. §§ 4.96, 4.97 (2017). When rating asthma based on PFTs, the post-bronchodilator results are used unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5) (2017). In such cases the pre-bronchodilator results are to be used. Under DC 6602 (bronchial asthma), a 10 percent rating is assigned for FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three times per year) courses of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned under DC 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97. In this case, the Veteran last underwent a VA examination of the respiratory system in June 2011, and he has since that time asserted that the service-connected respiratory disability has worsened. As to inhalation therapy, the June 2011 VA examination report reflects that the Veteran reported use of a nasal inhaler, and denied respiratory medications, to include inhalation therapy. At the September 2017 Board hearing, the Veteran testified to inhalation theory beginning, at the latest, in October 2014. See September 2017 Board hearing transcript. As to PFT results, an April 2012 VA treatment record reflects results of a PFT revealed FEV-1 and FEV1/FVC were each greater than 80 percent. An October 2017 private treatment record reflects results of a PFT revealed FEV-1 of 60 percent predicted. The October 2017 private examiner also specifically noted that FVC, FEV-1, and total lung capacity had each worsened in severity. In light of the specific assertion of worsening by the Veteran, as well as private treatment records suggesting that the service-connected restrictive airway disease has worsened since the last VA examination, a VA compensation examination of the Veteran's respiratory system should be obtained to assist in determining the severity of the service-connected respiratory disability. See 38 C.F.R. § 3.159 (c)(4); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a veteran is entitled to a new examination where the veteran specifically alleged the disability had increased in severity since the last examination two years earlier); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issue. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The record reflects that the Veteran has received VA and private treatment for the service-connected reactive airway disease. On remand the AOJ should attempt to obtain any outstanding VA and private treatment records concerning the remanded issue that are not already of record. Accordingly, the issue of an increased rating in excess of zero percent for the service-connected reactive airway disease is REMANDED for the following action: 1. Contact the Veteran and request information as to any private treatment received for the respiratory disability. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the asthma, not already of record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record all VA treatment records pertaining to the treatment of the service-connected respiratory disability, not already of record. 3. Schedule a VA respiratory examination to assist in determining the current severity of the service-connected respiratory disability. The relevant documents in the claims folder should be made be made available to the examiner for review in connection with the examination and he or she should indicate such review in the medical examination report. All appropriate tests and studies should be accomplished, including X-rays and/or other diagnostic studies, including pulmonary function testing. 4. After completion of the above and compliance with the requested actions has been ensured, readjudicate the issue of an increased disability rating in excess of zero percent for service-connected respiratory disability in light of all the evidence of record. If the determination remains adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs