Citation Nr: 1815470 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-15 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating higher than 10 percent for mild rhinosinusitis. 2. Entitlement to an initial disability rating higher than 10 percent for bilateral flexible flat foot deformity. 3. Whether new and material evidence has been received to reopen a claim for service connection for hepatitis C. 4. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disorder, to include arthritis. 5. Whether new and material evidence has been received to reopen a claim for service connection for a kidney condition. 6. Entitlement to service connection for cyst of the left kidney, claimed as a kidney condition. 7. Entitlement to service connection for a right knee disorder, claimed as arthritis. 8. Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service with the U.S. Marine Corps from September 1978 to January 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2010, May 2012, and April 2014 issued by the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. Although the Veteran initially requested a Board hearing in his March 2014 Substantive Appeal, his representative later withdrew the request. The claims for increased evaluations for rhinosinusitis and flexible flat foot deformity, and whether new and material evidence has received to reopen claims for service connection for hepatitis C and a left knee disorder have been perfected, but have not been certified to the Board. Since there is no indication that the AOJ is still taking action, or that the issues have not been withdrawn, the Board has accepted jurisdiction over them. These issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an August 2005 decision, the Board denied service connection for a kidney condition. That decision was final on the date stamped on the face of the decision. 2. New evidence received since the August 2005 Board decision relates to an unestablished fact necessary to substantiate the claim for a kidney condition and raises a reasonable possibility of substantiating the claim. 3. The Veteran's cyst of the left kidney was not present in service and is not otherwise related to service. 4. The Veteran does not have a diagnosed right knee condition disorder, including arthritis. 5. The evidence is at least in relative equipoise as to whether the Veteran's depression is proximately due to, or aggravated by, his service-connected flexible flat foot deformity; he does not have a valid diagnosis of PTSD consistent with DSM criteria. CONCLUSIONS OF LAW 1. Evidence received since the April 2005 Board decision is new and material and the criteria for reopening of the claim for entitlement to service connection for a kidney condition are met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for service connection for a left kidney cyst are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). 3. The criteria for service connection for a right knee disorder, including arthritis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for service connection for depression are met. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103 (a)-compliant notice in correspondence dated August 31, 2009, December 17, 2010, July 21, 2011, August 22, 2011, January 11, 2012, April 23, 2012, and July 16, 2013. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and he has not contended otherwise. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law, Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Board's grant of service connection for depression represents a complete grant of the benefits sought on appeal. Thus, no further discussion of VA's duty to notify and assist with respect to this issue is necessary. VA examination has not been provided to address the Veteran's claimed kidney condition and left knee disorder. However, the Board finds that an examination is not required because the record does not indicate that any currently diagnosed disorders have a causal connection or may be associated with the Veteran's military service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). Here, a medical opinion regarding the Veteran's claimed left kidney cyst is not required because the record before the Board does not indicate that the disorder had a causal connection to his military service, as he developed it decades after service, nor is it shown to be related to an event, injury, or disease in service. The only evidence that relates the Veteran's claimed kidney condition to service are his own conclusory lay assertions, which alone are not sufficient to render a VA examination or opinion necessary and do not trigger VA's duty to obtain a medical opinion to decide the claim. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (a claimant's conclusory generalized statement that a service illness caused his present medical problems is not sufficient to entitle him to a medical examination). With regard to the claim for service connection for right knee disorder, since there is no competent evidence of record of a current disability, an examination and opinion are not warranted. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claims, and examinations are not required here, even under the low threshold of McLendon. The Veteran has not raised any other 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). II. Law and Analysis for New and Material Evidence Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Moreover, if it is determined that new and material evidence has been submitted, the claim must be reopened and considered on the merits. Elkins v. West, 12 Vet. App. 209 (1999). In determining whether evidence is new and material, the credibility of the new evidence is, preliminarily, to be presumed. If the additional evidence presents a reasonable possibility that the claim could be allowed, the claim is accordingly reopened and the ultimate credibility or weight that is accorded such evidence is ascertained as a question of fact. 38 C.F.R. § 3.156; Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO originally denied the claim of service connection for kidney condition, manifested by hematuria, in June 2002 on the basis that there was no evidence of a chronic kidney condition during service. The Board denied the claim in August 2005 on the basis that there was no competent evidence of a current kidney disorder. The August 2005 Board decision is final. 38 C.F.R. § 20.1100. However, the evidence received since the August 2005 Board decision is both new and material to the claim. Such evidence consists of treatment records reflecting a current diagnosis of a left kidney cyst-and its possible correlation to military service-that was not of record at the time of the Board decision. This evidence relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating it. This new evidence, in conjunction with VA's duty to assist, requires reopening. Shade, 24 Vet. App. at 117. III. Law and Analysis for Service Connection The Veteran is seeking service connection for cyst of the left kidney, a right knee disorder, and a psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cysts are not listed in section 3.309(a). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). After careful consideration of the evidence, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. Left Kidney Cyst The Veteran essentially contends that an episode of hematuria during service was the onset of or precursor to his current left kidney cyst. Service treatment records show that in June 1979, the Veteran was hospitalized for hematuria. Physical examination and an IVP (intravenous pyelogram) showed his kidneys were normal, but laboratory testing revealed he carried the sickle cell trait. After the hematuria cleared, the Veteran was seen in consultation by the Department of Nephrology. Additional urology work-up, including a cystoscopy, showed no organic reasons for the hematuria and a renal biopsy was not performed as the hematuria was considered most likely a complication of the sickle cell trait. The examiner noted that strenuous activity was a probable inciting cause of renal bleeding in sickle cell trait and the Veteran was subsequently found not fit for full duty. He was referred to the Physical Evaluation Board and discharged from service for sickle cell trait. During this time, there were no complaints or findings suggestive of renal cysts. Although the Veteran now claims to have experienced ongoing kidney problems, post-service records show his VA Problem List did not include urinary frequency, hematuria, renal cysts, or any other genitourinary disorder. The earliest pertinent medical evidence is found in an abdominal ultrasound report from 2012, which revealed a small cyst on the left kidney that was considered benign and secondary to high blood pressure. See VA correspondence from Miami VA Health Care System dated February 17, 2012. Having carefully reviewed the evidence of record, the Board finds that the criteria for service connection for a left kidney cyst are not met. Service treatment records fail to reveal any signs or symptoms suggestive of a cyst. Moreover a diagnosis (or relevant complaints) of a renal cyst does not arise in post-service treatment records until more than 30 years after service. The prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Furthermore, there is no competent evidence linking the post-service left kidney cyst to the Veteran's military service many decades earlier and he has not submitted any medical opinion that relates it to service/events therein. Insofar as the Veteran's statements purport to provide a nexus opinion between his left kidney cyst and service, the Board notes determining such etiology (as distinguished from merely reporting the presence of symptoms) is not a simple question. Doing so requires knowledge of the complexities of genitourinary system, an understanding of the potential causes and risk factors for renal cysts, and an ability to interpret both clinical and laboratory testing to diagnose the underlying condition, and so is beyond the scope of knowledge of a lay person. In other words, mere observable symptomatology is insufficient. In this case, the facts are complex enough that the Veteran's assertions regarding his symptoms are not sufficient to outweigh the remaining evidence of record. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Although the Veteran clearly was treated for an episode of hematuria during service, it was attributed to sickle cell trait. So his statements as to how his left kidney cyst developed are not sufficient to satisfy the requisite nexus requirement. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). B. Right Knee Although the Veteran claims to experience ongoing right knee problems, the primary impediment to a grant of service connection is the absence of a current disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143- 44 (1992). Service treatment records show the Veteran did not indicate any specific right knee complaints and there is no evidence is found to support an in-service injury or diagnosis of a right knee disorder. There are also no objective findings or confirmed diagnosis of right knee arthritis, or any other musculoskeletal disorder involving the right knee, in post-service VA or private treatment records. Instead these records show that during outpatient evaluations the Veteran's complaints were confined to his left knee with no mention of right knee and no such complaints are documented in any report of past medical history. The Veteran is not currently undergoing treatment for a right knee disorder. In general a clinical finding, 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 Veteran has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show any identifiable evidence of a current right knee disorder. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (service connection may not be granted for symptoms unaccompanied by a diagnosed disability). Although the Veteran subjectively reports right knee complaints, there are no objective physical or radiological findings to support a diagnosis. So while he may indeed experience some sort of recurring right knee pain, in the absence of competent evidence which suggests that it constitutes an actual chronic disability, the Board has no basis on which to consider it as more than a medical finding or symptom. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). C. Psychiatric Disorder The Veteran is seeking service connection for psychiatric symptoms, to include PTSD, which he asserts are related to his military service. In the alternative, he claims the psychiatric symptoms are caused, or made worse, by his general medical conditions (i.e., bilateral knee, foot, shoulder, and neck pain), including his service-connected flexible flat foot deformity. VA treatment records include negative PTSD and depression screens in 2005 and 2006. However these records also show that recurrent major depressive disorder was included on the Veteran's VA Problem List since 2004 as well as mood disorder and dysthymic disorder since at least 2001. A VA medical opinion was provided in July 2011. At that time the Veteran reported depression due to daily constant pain involving his knees, feet, shoulder, and neck, rated as 8-10/10 on the pain scale. The examiner also noted the Veteran's history of alcohol and substance abuse, and that a recent PTSD screen was negative. Following the examination, the examiner concluded that the Veteran had depression due to medical illness, primarily knee, shoulder, feet, and neck pain, with no other active disorder. This medical opinion, thus establishes the required cause-and-effect correlation between the service-connected flexible flat foot disorder foot and the development/progression of his depression. While the examiner also related the depression to other factors (knee, shoulder, and neck pain) that are not service-connected, he did not clearly distinguish the extent that the depression was related to the service-connected foot disability and the nonservice-connected factors. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. In the end, there is no adequate reason to reject the VA medical opinion that is favorable to the Veteran. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board resolves all reasonable doubt in favor of the Veteran and finds that the requirements for secondary service connection for depression are met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board also notes that to the extent the Veteran claims service connection for PTSD, both VA outpatient treatment records and the July 2011 VA examination are absent for any diagnosis of a separate psychiatric disorder, apart from the depression. See Sanchez-Benitez supra. In the absence of a current disability, the claim for service connection for PTSD must be denied. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997); see also Brammer supra. ORDER New and material evidence having been received, the claim for service connection for a kidney condition is reopened, and to this extent only, the appeal is granted. Entitlement to service connection for cyst of the left kidney, claimed as a kidney condition is denied. Entitlement to service connection for a right knee disorder, claimed as arthritis is denied. Entitlement to service connection for depression is granted. REMAND As noted in the Introduction, the Veteran perfected appeals from three separate rating decisions. Of significance is the appeal from the August 2010 rating decision, wherein the RO denied increased evaluations for mild rhinosinusitis and flexible flat foot deformity and declined to reopen claims for service connection for hepatitis C and a left knee disorder. In March 2014, the Veteran perfected his appeals by submitting a timely VA Form 9 and requested the opportunity to provide testimony at a videoconference Board hearing. In August, 2014, the Veteran was notified that he had been placed on the list of persons wanting to appear for a Travel Board hearing; however in May 2016 his representative withdrew the request. The RO did not certify these issues to the Board and it does not appear that any further action has been undertaken. Since these issues are no longer awaiting the scheduling of the requested Board hearing and the appeals for these issues have not been withdrawn, a remand will allow for original consideration of all additional evidence added to the claims file since, the January 2014 Statement of the Case (SOC). Accordingly, the case is REMANDED for the following action: 1. Readjudicate the claims for entitlement to increased evaluations for service-connected mild rhinosinusitis and service-connected flexible flat foot deformity and as to whether new and material evidence has been received to reopen claims for service connection for hepatitis C and service connection for a left knee disorder. The AOJ should consider all evidence received after the issuance of the January 2014 SOC. 2. After the above action is completed, if the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs