Citation Nr: 1808170 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 16-10 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an effective date earlier than December 10, 1992, for the award of service connection for residuals of a duodenal ulcer. 2. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a right knee disability. 3. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a left knee disability. 4. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Husain, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1960 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran appeared for a hearing in November 2017 and a transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. After the June 1986 rating decision that denied service connection for ulcers, a service department record was received in 1999 that warranted reconsideration of the claim, as it showed that the Veteran had been diagnosed with a duodenal ulcer in service. An August 1986 VA hospitalization record shows a diagnosis of duodenal ulcer. Duodenal ulcer is a chronic disease. 2. In a July 1999 RO decision, the RO denied service connection for a bilateral knee disability and a lumbar spine disability. The claims were denied because the evidence did not support that the Veteran's bilateral knee and back disabilities were incurred during service. The Veteran was notified of the decision along with his appeal rights, and he did not appeal the decision. 3. Evidence submitted subsequent to the July 1999 RO decision is cumulative or redundant of the evidence previously of record, does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims for service connection for a bilateral knee disability or lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 10, 1986, but not earlier, for the award of service connection for residuals of a duodenal ulcer have been met. 38 U.S.C. §§ 5108, 5110 (2012); 38 C.F.R. § 3.156(c) (1999); 38 C.F.R. § 3.400 (2017). 2. The July 1999 RO decision that denied service connection for a bilateral knee disability and a lumbar spine disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 3. Evidence received since the July 1999 RO decision that denied service connection for a bilateral knee disability and a lumbar spine disability is not new and material, and the claims are not reopened. 38 U.S.C. § 5108 (2012). 38 C.F.R. §§ 3.104, 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. II. New and Material Evidence In general, decisions of the Agency of Original Jurisdiction (AOJ) that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing 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. 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). Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. A. Earlier effective date for duodenal ulcer The Veteran seeks an earlier effective date for the award of service connection for duodenal ulcer. He had filed an original claim for service connection for an ulcer in April 1986, which claim was denied in a June 1986 RO rating decision because the RO determined the service treatment records did not demonstrate that the Veteran had developed an ulcer during service. The Veteran was notified of the rating decision that same month and was provided his appeal rights. He submitted a notice of disagreement in September 1986, and a statement of the case was issued in October 1986. In March 1987, VA received a VA hospitalization summary, dated April 1986, which showed a diagnosis of duodenal ulcer disease. The RO then issued a new rating decision in March 1987, continuing to deny the claim. The RO explained that the service treatment records were negative for ulcer disease and that this evidence was not new and material. The Veteran was notified of this determination in April 1987 along with his appeal rights, and he did not appeal the decision. He also did not perfect an appeal following the October 1986 statement of the case. Thus, the June 1986 and March 1987 rating decisions became final. In 1992, the Veteran filed an application to reopen the claim for service connection for a duodenal ulcer; however, VA did not adjudicate this claim. In January 1999, the Veteran submitted another application to reopen the claim for service connection for a duodenal ulcer. At that time, the Veteran submitted a May 1964 document, which is a service department record, which stated that the Veteran had an "active duodenal ulcer[,] which is aggravated by irregular working hours and meals." (The Veteran submitted this document again after the November 2017 hearing thinking he had not submitted it previously.) The medical corpsman asked that the Veteran be placed on a regular day shift for at least 90 days. In April 1999, the RO reconsidered the claim on the merits and denied it. It found that the 1964 letter failed to show an in-service diagnosis of ulcer confirmed by clinical or test findings. The Veteran appealed this decision, and the RO issued a statement of the case in July 1999, and the Veteran perfected his appeal in August 1999. The case was never sent to the Board, even though the Veteran had perfected his appeal. In August 2013, the Veteran submitted an application to reopen the claim for service connection for a duodenal ulcer. In an April 2014 rating decision, the RO reopened the claim and granted service connection for duodenal ulcer, effective April 15, 2013. In July 2014, the Veteran requested an earlier effective date for the award of service connection duodenal ulcer. In the February 2015 rating decision on appeal, the RO denied an earlier effective date for the award of service connection for duodenal ulcer. Following the Veteran's notice of disagreement, the RO recognized that the Veteran's 1999 application to reopen, which appeal had been perfected, was never sent to the Board and granted an earlier effective date of January 19, 1999. The Veteran still requested an earlier effective date, and in a January 2017 rating decision, the RO recognized that the 1992 application to reopen the claim for service connection for ulcer disease was never acted upon and granted an earlier effective of December 10, 1992, for the award of service connection for duodenal ulcer. The Veteran still seeks an earlier effective date and alleges that the 1986 rating decision that denied service connection for a duodenal ulcer contains clear and unmistakable error in denying the claim. After a review of the evidence of record, the Board finds that the evidence supports the award of an effective date of April 10, 1986, for the award of service connection for duodenal ulcer. The reasons follow. "Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction ... Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim." 38 C.F.R. § 3.156(c) (1999). If reconsideration is warranted, finality of the prior rating decision is vitiated, and the claim will be addressed de novo. Following the 1986 denial of service connection for ulcer disease, the Veteran submitted an application to reopen the claim for service connection for duodenal ulcer in 1992. As noted above, the RO did not act upon that claim, and when the Veteran submitted a service department record in 1999, that was part of the 1992 application to reopen. The RO properly reconsidered the claim in 1999, but denied it because it still found that ulcer disease was not shown in service. As acknowledged by the RO, the Veteran's 1992 application to reopen had remained pending until the award of service connection for ulcer disease in the April 2014 rating decision. What appears to have happened was that in 1999, the Veteran informed VA that he was moving out of the country and VA's intent was to have the Washington, D.C., RO take over jurisdiction of the claim and forward the Veteran's file to the Board, but there was a notation in the file that the Veteran's new address was not part of the record, and the case was never forwarded to the Board. Thus, the 1992 application to reopen the claim has remained pending and that is the point upon which the Board is determining whether the Veteran is entitled to an earlier effective. Thus, since the 1986 and 1987 final denials, the Veteran submitted a service department record, which the Board finds warranted both reconsideration and the grant of service connection for duodenal ulcer. This allows the date of claim to go back to the Veteran's original claim for service connection for ulcer disease, which was received on April 10, 1986. Thus, this is the effective date that the Board finds is warranted for the award of service connection, as the evidence shows that the Veteran had a chronic disease (ulcer) in service and that same disease in 1986, as documented by a VA hospitalization record dated in April 1986. If a chronic disease or injury is shown in service, any subsequent manifestations of the same chronic disease or injury at any later date should be considered as having its onset in service, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The Board finds no basis to conclude an intercurrent cause. As noted above, the Veteran had alleged that there was clear and unmistakable error in the 1986 rating decision in denying the claim for service connection for duodenal ulcer. Because the receipt of a service department record vitiated the finality of the 1986 rating decision, there can be no claim for clear and unmistakable error, as such error cannot exist in a rating decision that has not become final. 38 C.F.R. § 3.105(a) (2017). Regardless, the application of 38 C.F.R. § 3.156(c) has caused the same result as a finding of clear and unmistakable error in the 1986/1987 decisions. Accordingly, the effective date for the award of service connection for duodenal ulcer should be April 10, 1986. To this extent, the Veteran's claim is granted. The Board finds, however, that there is no basis to grant an effective date earlier than April 10, 1986, as there was no claim for service connection for duodenal ulcer filed prior to that date. To this extent, the claim for an even earlier effective date must be denied. B. Right knee, left knee, and lumbar spine The Board notes that during the appeal, the RO, after having denied reopening the claims for service connection for right knee, left knee, and lumbar spine disabilities, reopened them and denied them on the merits. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). The initial question before the Board, therefore, is whether new and material evidence has been received to reopen the claims for service connection for right knee, left knee, and lumbar spine disabilities, regardless of how the RO characterized the issues. In regard to the history of these claims, the Veteran submitted a claim for service connection for the left and right knee disabilities and a lumbar spine disability in April 1999. He stated that he injured both of his knees and back playing football while stationed in the Philippines. Medical evidence showed current diagnoses pertaining to the knees and back. In a July 1999 rating decision, the RO denied service connection for residuals of a bilateral knee and lumbar spine injuries. The RO denied the claims because it found that the evidence did not support that the Veteran's bilateral knee and back disabilities were incurred during service. The Veteran was notified of the decision in a July 1999 letter, which included his appellate rights, and he did not file an appeal. Therefore, this decision became final. In general, decisions of the Agency of Original Jurisdiction (AOJ) that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In the April 2014 RO decision currently on appeal, the RO denied reopening the claims. However, after providing the Veteran with examinations, the RO reopened the claims and denied them on the merits. The Veteran now seeks to reopen his claims of service connection for right knee, left knee, and lumbar spine disabilities through the submission of new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. Id. The evidence of record in July 1999, which was the time of the last final denial, included the Veteran's STRs, post service treatment records, VA examinations, and lay statements. The Veteran's claims were originally denied because the evidence did not support that the Veteran's bilateral knee and back disabilities were incurred during service. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the July 1999 rating decision and finds that the additional evidence received is not new and material within the meaning of 38 C.F.R. § 3.156. The reasons follow. Since the July 1999 RO decision, the Veteran has submitted service treatment records (STRs), military personnel records, lay statements, post service medical records, and a photograph. The Veteran also provided testimony before the undersigned in November 2017. Regarding the Veteran's newly submitted STRs, these records do not substantiate the Veteran's contention that his knee and back disabilities were incurred in service. These records discuss unrelated medical issues only, and do not reference the Veteran's knees or back. As to the military personnel records, there is also no evidence within these records to substantiate the Veteran's contention that his knee and back disabilities were incurred in service. These records do not discuss any injuries or complaints related to the Veteran's knees or back and instead related to the Veteran's in-service performance assessments. Thus, the Board concludes that this evidence is not new and material under 38 C.F.R. § 3.156(a) and does not constitute relevant service department records under 38 C.F.R. § 3.156(c). The medical records indicate that the Veteran continues to seek medical treatment for his knee and back disabilities. Although the Veteran has submitted clinical records that demonstrate treatment for knee and back disabilities, none of this evidence contains an indication that these disabilities were incurred during service. The Veteran's current treatment records for right knee disability, a left knee disability, and lumbar spine disability do not provide any new and material evidence for the claims of service connection for these disabilities, as they do not contain any new information relating to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156. Evidence of current disabilities existed at the time of the July 1999 decision. VA provided the Veteran with an examination in December 2015 for the lumbar spine disability. In the December 2015 VA examination report, the examiner did a thorough review of the evidence of record and determined that the Veteran's lumbar spine disability was less likely than not related to an in-service injury to the lumbar spine and that it was more likely due to the natural aging process and accelerated by a motorcycle accident, which resulted in the herniated lumbosacral disc. A negative opinion does not constitute new and material evidence to reopen the claim for service connection for a lumbar spine disability. The Veteran has submitted a photograph, which he contends is a photograph from service in 1962, where the Veteran is wearing a cast that covers his entire leg. Even assuming the credibility of the photograph, the picture does not indicate whether the Veteran was injured on his right knee or another location on his right lower extremity. Furthermore, the presence of a photograph showing a cast on the Veteran's right leg does not provide evidence that right knee disability was incurred in service, and therefore does not relate to an unsubstantiated fact necessary to substantiate the claim. Finally, the Board notes that the photograph does not constitute a service department record under 38 C.F.R. § 3.156(c), and reopening the claim on this basis is not warranted. The Board has also reviewed the lay statements submitted by the Veteran, his wife, and a friend, and finds that they do not contain new and material evidence to substantiate the Veteran's contention that his knee and back disabilities were incurred during service. In one of the statements, R.M.P. wrote that he was aware that the Veteran was in the service and that he had questioned the Veteran about his experiences, and remembered that the Veteran told him he played football during service. R.M.P. wrote he was impressed that the Veteran could do that and that the Veteran made him aware that he (the Veteran) was on leave because of an injury. R.M.P. made no mention of what injury the Veteran had sustained. There are two statements from the Veteran's wife, wherein she stated she met the Veteran after he was discharged from service, but that he had told her about his injuries during service. During the November 2017 hearing, the Veteran again contended his knee and back disabilities were due to playing sports during service. The Veteran's testimony and his wife's lay statements are essentially duplicative of evidence that was of record at the time of the July 1999 decision. The Veteran submitted a statement in April 1999, wherein he stated he injured "both knees as well as my lower (lumbar) spine" while playing "military service football." The lay statements and testimony reiterate these facts. Accordingly, the new lay statements and the hearing testimony are cumulative of the evidence previously considered. The Board finds that the evidence received since the July 1999 rating decision does raise a possibility of substantiating the claims. Most of the evidence is essentially duplicative or cumulative of prior evidence of record. Again, while VA provided the Veteran with a VA examination in connection with the lumbar spine disability, the examiner provided a negative opinion. Thus, while new, that negative medical opinion would not be material, as it finds that the current disability is not related to service. 38 C.F.R. § 3.156(a). For these reasons, the Board finds that the evidence received since the final July 1999 rating decision is not new and material within the meaning of 38 C.F.R. § 3.156(a). Consequently, the Board finds that new and material evidence has not been received and the claims for service connection for a right knee, a left knee, and a lumbar spine disability are not reopened. ORDER An effective date of April 10, 1986, but not earlier, for the award of service connection for residuals of a duodenal ulcer is granted. New and material evidence has not been received sufficient to reopen a claim for entitlement to service connection for right knee disability. New and material evidence has not been received sufficient to reopen a claim for entitlement to service connection for a left knee disability. New and material evidence has not been received sufficient to reopen a claim for entitlement to service connection for lumbar spine disability. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs