Citation Nr: 20004465 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-08 463 DATE: January 21, 2020 ORDER New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right knee disability, and the claim is denied. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee disability is denied. REMANDED Entitlement to a compensable rating for a left testicular varicocele is remanded. FINDINGS OF FACT 1. An unappealed May 1982 rating decision that denied service connection for a right knee disability became final. Evidence received since that rating decision does not relate to unestablished facts that raise a reasonable possibility of substantiating a claim for service connection for a right knee disability. 2. The preponderance of evidence is against a finding that any diagnosed back disability is etiologically related to any incident or injury incurred during active service. 3. The preponderance of evidence is against a finding that any diagnosed left knee disability is etiologically related to any incident or injury incurred during active service. CONCLUSIONS OF LAW 1. New and material evidence has not been received since the last final rating decision to reopen a claim for service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria to establish service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e). 3. The criteria to establish service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to July 1981. Service Connection Service connection may be established 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 direct service connection, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). 1. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a right knee disability, and the claim Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that 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. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Regarding the claim for service connection for a right knee disability, a February 1982 rating decision denied service connection based on the lack of finding of an etiological relationship between a right knee disability and service. However, the decision noted that the service medical records were not of record. The service medical records were later made available and the claim was readjudicated in a May 1982 rating decision, and again denied. The Veteran was notified of that decision and of his appellate rights. He did not submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156(b). Accordingly, the May 1982 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In August 2014, the Veteran filed a claim to reopen the previously denied claim for service connection for a right knee disability. An April 2015 rating decision denied the claim, again finding that there was no evidence of any etiological nexus between any current right knee disability and service. The Veteran filed a timely notice of disagreement and substantive appeal and the claim is before the Board. The Board finds that a review of all of the evidence of record, to specifically include that submitted or acquired after the most recent denial of service connection does not show any evidence that can be considered both new and material, as to warrant reopening the claim. The Board notes that for a previously and finally denied claim to be reopened, the pending evidence meet both requirements of being new and material. 38 C.F.R. § 3.156(a). While the newly acquired evidence of record, to include the VA and private medical records, and a VA examination, is new, as it was not a part of the record prior to the previous decision, that evidence cannot be considered material, as it does not show a reasonable possibility of substantiating any previously undetermined fact. The Veteran’s claim was previously denied based on the lack of finding of an etiological relationship to service. The previous final denial considered the service medical records, to include evidence of inservice complaints, treatments, and injury, relating to the right knee. The Board note the RO’s specific consideration of a November 1981 VA examination of the left knee, finding that the Veteran did not have any chronic residuals of any right knee service complaints or treatments and injuries noted in service. The relevant VA examination of record provided a negative opinion with regard to any etiological connection between service, and any current right knee disability. Therefore, the RO denied service connection in a May 1982 decision. The evidence of record does not show any new theories of entitlement, to include any new or material assertions of the etiology of a right knee disability. While there is ample evidence of a confirmed right knee disability, the evidence and testimony submitted by the Veteran since the most recent final denial has, essentially, been redundant. Specifically, the Veteran has repeatedly submitted private medical evidence showing a right knee disability, to include arthritis. However, none of the new medical evidence addresses the etiology of the claimed right knee disability. The Board finds that proof of a current disability alone, while considered new, does not constitute as material, as a diagnosis itself, without anything else, to include additional theories of entitlement, or a plausible pathway to establishing an etiological nexus, is insufficient to reopen a claim. The presence of a disability alone does cannot plausibly substantiate a claim for service connection. Here, the Board notes that in addition to these VA and private medical records, the VA also provided the Veteran a VA examination to assess the nature and etiology of the claimed right knee disability. The April 2015 examiner opined against the Veteran’s claim for service connection, finding that the right knee disability was not etiologically related to inservice complaints and treatments. The examiner noted that, as noted in the prior November 1981 VA examination, to include X-ray diagnostics, despite the Veteran’s separation examination report noting DJD of the right knee, the medical evidence surrounding that period showed no evidence of DJD. Again, while that examination is considered new, it is not considered material, as it is evidence against the claim and cannot establish any previously unfounded facts. Therefore, the claim to reopen must be denied, as such evidence cannot be considered new or material, no evidence has been presented that has the tendency to substantiate the claim. 38 C.F.R. § 3.156(a). The record also contains VA treatment records. A review of those records shows only diagnosis and treatment for a current right knee disability, with no evidence speaking to the etiology of any knee disability or relating any knee disability to service. Consequently, as the Veteran has not submitted non-cumulative evidence that would be new, demonstrating any previously unestablished fact, or raising a reasonable possibility of substantiating the claim, since the most recent final denial, the Board finds that new and material evidence has not been submitted. Therefore, the claim cannot be reopened and remains denied. 38 C.F.R. § 3.156. 2. Entitlement to service connection for back and left knee disabilities The Veteran contends that his back and left knee disabilities are etiologically related to his service. The Board finds that although the service medical records show that the Veteran was treated during active service for a back and knee pain, the competent medical evidence of record demonstrates no etiological connection between a current back or left knee disability and service or any work during active service. Therefore, as the preponderance of the competent medical evidence of record is against a finding that any current back or left knee disability is related to any in-service injury, the claim for service connection must be denied. The service medical records show that the Veteran was seen for back pain/strain on a few occasions during service. It was noted that he experienced lower back pain, with muscle strain and non-radiating pain. The service medical records also show several incidents of reported knee pain of both knees. At an April 2015 VA examination to determine the nature and etiology of a claimed back disability, the examiner conducted an in-person examination of the Veteran’s condition and reviewed the claims file and medical history. A review of the examination report shows that the examiner diagnosed lumbosacral strain and degenerative arthritis. However, the examiner concluded the neither of the currently diagnosed lumbar spine disabilities was related to any incident or injury from active duty. In arriving at that conclusion, the VA examiner noted consideration of the Veteran’s in-service muscle strain and injury, but opined that injury was unrelated to the current disabilities. The examiner reasoned that since the Veteran’s back incident in the 1980s, there had been no indication of any recurrent issues, chronic symptoms, or diagnoses of disabilities related to the back for several decades. Specifically, the examiner noted that the medical evidence did not show any treatment or complaints for nearly 35 years after separation from service, when medical evidence demonstrated evidence of degenerative arthritis of the back. The examiner opined that the Veteran’s back disabilities were age-related degenerative changes, and not related to injuries during service. The April 2015 VA examiner also noted the same result for the claimed left knee disability. After diagnosing patellofemoral pain syndrome, the examiner found no evidence that the noted left knee pain during service was etiologically related to the current left knee disability. The examiner noted the 35 year gap between the Veteran’s separation, where no left knee disability was noted, and the current claim. The examiner opined that the left knee disability showed no chronicity out of or during service, and therefor was not related to the current disability. The Board notes the medical evidence available of record is silent for nearly 35 years after active service with regard to complaints, treatments, or diagnoses relating to the back or the left knee. The Board also notes that a review of the private medical record provided by the Veteran dated May 2014, includes a notation that the Veteran’s back pain started only a year ago in 2013. The Board acknowledges the Veteran’s contentions that back and left knee disabilities are related to an injury in service. However, the Veteran’s statements are considered lay evidence. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2); Bruce v. West, 11 Vet. App. 405 (1998) (person that is not a medical expert is nevertheless competent to offer evidence of symptoms in support of a claim for increased rating); Layno v. Brown, 6 Vet. App. 465 (1994). Here, the Board finds that the testimony and statement regarding the etiology of the claimed disabilities is less probative than that of the April 2015 VA examiner’s opinions regarding nexus. In evaluating the probative value of competent medical evidence, the value of medical opinion evidence depends on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The credibility and weight to be attached to opinions are within the province of the adjudicators. Black v. Brown, 10 Vet. App. 297 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing medical data). The Board finds that the VA examiner’s opinions regarding the etiology of the Veteran’s back and left knee disabilities are more probative as they were made after physical examination by a physician or medical doctor, which included radiological studies, and were informed and based on a review the claims file and medical history of the Veteran. The Veteran has not shown that he has specific expertise regarding pathology of orthopedic diseases and disabilities. Therefore, the Board finds the opinions to not be in equipoise and that the April 2015 VA examination opinion is more probative and dispositive of the claim for service connection. As the preponderance of the medical evidence is against the claim, service connection must be denied on a direct basis. The Veteran has not submitted any contrary competent medical evidence that relates any current back or left knee disability to service or any event, injury, or disease during service. The Board notes that service connection may also be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the continuity of symptomatology language in 38 C.F.R. § 3.303(b) restricts itself to the chronic diseases found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As arthritis is a chronic disease, the Board finds that continuity of symptomatology must be considered. 38 C.F.R. § 3.309(a). However, the Board finds that the preponderance of the evidence of record is against a finding that arthritis of the back arose during the presumptive period of one year after service or that arthritis of the back has been ongoing since service. The Board also has considered the Veteran’s lay statements with regard to pain in the back. However, again, the Board notes that arthritis is not the type of condition which a lay person, such as the Veteran, can competently diagnose. Diagnosis of such a complex medical condition not only requires specialized medical training and education, but also radiological diagnostics and equipment. Therefore, the Veteran, as a lay person, cannot be considered competent to diagnose, or speak to the fact that he had arthritis of the back currently, or at any time since active service. Layno v. Brown, 6 Vet. App. 465 (1994). As the competent medical evidence of record is silent during the relevant decades, the Board must find that the preponderance of the evidence is against a finding that the Veteran had a continued condition of back arthritis since active service. Therefore, with no medical evidence of arthritis of the back arising to a compensable degree within a year after service and no evidence of a continuity of symptomatology, the Veteran’s claim for service connection on a presumptive basis for a chronic disability must also be denied. The examiner considered the medical history of record in providing the negative opinions, and the Board finds that examiner’s opinion more probative and more persuasive. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, reasonable doubt shall be resolved in favor of the claimant. However, the Board finds that the preponderance of the evidence is against the claim for service connection for back and left knee disabilities, and the claims must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating for a left testicular varicocele is remanded. With regard to the claim for increased rating, the Veteran was provided the most recent VA examination in March 2017, nearly three years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, claims of a worsening condition regarding the Veteran’s left testicle condition have been set forth by the Veteran since that examination. When available evidence is too old for an adequate evaluation of the current condition, VA’s duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the last examination temporally remote, but the examination appears to no longer indicate the Veteran’s current level of disability. Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran’s claim for an increased rating for a left testicle disability. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain all VA treatment medical records not already of record. 2. After obtaining appropriate authorization, obtain any private treatment records identified by the Veteran, to include any records from private treatment providers that are not already of record. 3. Then, schedule the Veteran for a VA examination of the service-connected left testicular varicocele disability. The examiner must review the claims file and should note that review in the report. The examiner is asked to report on the current nature and severity of the service-connected left testicle disability. A complete rationale for any opinion expressed should be included in the examination report. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ziheng Zhu, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.