Citation Nr: 21000002 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-63 864 DATE: January 4, 2021 ORDER The application to reopen the previously denied claim for entitlement to service connection for right knee pain is granted.   Entitlement to service connection for lumbosacral strain with degenerative disc disease is granted. Entitlement to service connection for right knee osteoarthritis is granted. Entitlement to service connection for hypertension is denied. Entitlement to service connection for diabetes is denied. FINDINGS OF FACT 1. In a July 2013 rating decision, the Agency of Original Jurisdiction (AOJ), among other things, denied the Veteran’s claim of service connection for right knee pain.  Although the Veteran was notified of the AOJ’s decision and his appellate rights in a July 2013 letter, he did not perfect an appeal within the applicable time period in regard to that claim, nor was new and material evidence received within one year of issuance of that decision.  2. The evidence received since the July 2013 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of service connection for right knee pain. 3. The evidence is at least evenly balanced that the Veteran’s lumbosacral strain with degenerative disc disease is related to his active duty service.  4. The evidence is at least evenly balanced that the Veteran’s right knee osteoarthritis is related to his active duty service. 5. The preponderance of the evidence is against finding that the Veteran’s hypertension had its onset in service, is otherwise related to service, or manifested within a year of separation from service. 6. The preponderance of the evidence is against finding that the Veteran’s diabetes had its onset in service, is otherwise related to service, or manifested within a year of separation from service. CONCLUSIONS OF LAW 1. The July 2013 rating decision denying the claim of service connection for right knee pain is final.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.   2. New and material evidence has been received to warrant reopening the claim of service connection for right knee pain.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a).   3. With reasonable doubt resolved in favor of the Veteran, the criteria for  lumbosacral strain with degenerative disc disease are met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.    4. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right knee osteoarthritis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.    5. The criteria for service connection for hypertension are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.  6. The criteria for service connection for diabetes are not met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to May 1993 and February 2005 to May 2006 and performed service in the Army National Guard. In a July 2013 administrative decision, a Department of Veterans Affairs (VA) Regional Office (RO) found that only the Veteran’s period of service from February 14, 2005 to May 12, 2006 was considered honorable service. His service from November 1, 1989 to May 24, 1993 was determined to be dishonorable for VA purposes. These matters come before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the VA RO that, among other things, denied the claims of service connection for lower back disability, right knee pain, hypertension, and diabetes. In September 2020, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. As a final preliminary matter, the AOJ included the claim of service connection for right knee pain in the October 2014 rating decision in error. At the time of that decision, there was no pending claim of service connection for right knee pain nor was the claim on appeal. However, this inclusion was harmless as it does not affect the outcome of the claim. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for right knee pain Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C. § 7105(c).  An exception to this rule is 38 U.S.C. § 5108 (2012), 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.  The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).   New evidence means 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).   To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally 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.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).   The question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim).  In a July 2013 rating decision, the AOJ denied the Veteran’s claim of service connection for right knee pain as service treatment records did not show a diagnosis or treatment for his right knee condition while in service from February 2005 through May 2006. Therefore, the evidence did not show the Veteran’s knee pain was related to service. Although the Veteran was notified of the RO’s decision and his appellate rights in a July 2013 letter, he did not perfect an appeal within the applicable time period as to the claim of service connection for right knee pain, nor was new and material evidence received within one year of issuance of that decision.  38 C.F.R. § 20.1103.   Thus, this decision became final. In a June 2015 rating decision, the AOJ found that the Veteran had not submitted new and material evidence in regard to the claim of service connection for right knee pain and denied the application to reopen the claim. Evidence received since the prior final July 2013 rating decision includes the Veteran’s September 2020 Board hearing testimony contending he has experienced continuous right knee pain symptoms in and since separation from service. Given the basis for the prior denial, this evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim.  Accordingly, reopening of the claim is warranted.  Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018).  Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Entitlement to service connection for lumbosacral strain with degenerative disc disease and right knee osteoarthritis During a September 2014 VA examination, the examiner noted the Veteran’s diagnosis of lumbosacral strain. The Veteran reported waking up in February or March 2005 with low back pain/stiffness and has experienced intermittent low back pain since that time that occurred monthly and resolved within a couple of days on its own. The examiner found it was less likely than not that the Veteran’s low back disability was related to service. The examiner reasoned that the Veteran’s examination was negative for functional impairment secondary to a back condition. The Veteran’s history was suggestive of intermittent lumbar strain, but was negative for any chronic back condition resulting from his active service causing functional impairment. A May 2016 VA addendum opinion noted that review of the Veteran’s VA outpatient records indicated no complaints of back pain in 2007, 2008, 2010, 2011, 2012, and 2013. The Veteran’s VA outpatient record documented complaints of low back pain in 2014 and 2015, and his x-rays in August 2015 demonstrated evidence of mild degenerative disc disease and spondylosis of the lumbar spine, greatest at L4-5 and L5-S1. As stated in the original opinion of September 10, 2015, the Veteran’s history suggested intermittent lumbar strain until 2015 when he was diagnosed with chronic low back pain. His VA outpatient records between 2007 and 2013 were negative for any chronic lumbar condition. His x-rays in 2015 demonstrated evidence of mild degenerative disc disease and spondylosis, which suggested evidence of wear and tear from age, possibly exacerbated by being overweight. There was no evidence that the Veteran sustained a back condition which began during service and resulted in chronic functional impairment after his separation. Thus, it was less likely than not the Veteran’s lower back disability was related to service. During his September 2020 Board hearing, the Veteran testified he experienced lower back and right knee pain symptoms during physical training and his job duties while deployed to Guantanamo Bay, to include carrying heavy battle gear up and down watchtowers. For the following reasons, entitlement to service connection for lumbosacral strain with degenerative disc disease and right knee osteoarthritis is warranted.     The September 2014 and May 2016 VA examiner noted the Veteran’s diagnosis of lumbosacral strain with degenerative disc disease.  A November 2015 VA treatment record noted an x-ray showing right knee osteoarthritis. Therefore, he meets the current disability requirement.   The Veteran is competent to report continuous lower back and right knee pain symptoms in the years in and since separation from service.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a Veteran is competent to testify regarding continuous pain since service, and lay evidence, when credible, is competent to establish the presence of continuous symptoms for a claimed disability during and since separation from military service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran’s statements in regard to continuous lower back and right knee pain symptoms are therefore competent and credible. The September 2014 and May 2016 VA opinions are afforded little probative value as they relied in part on the lack of contemporaneous medical evidence without considering the Veteran’s lay statements regarding continuous lower back and right knee pain symptoms both in and since his separation from service. Buchanan, 451 F.3d at 1336 (VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”).    To the extent that the grant of service connection in this case is based primarily on lay evidence, “nothing in the regulatory or statutory provisions [relating to evidence to be considered] require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself.” Buchanan, 451 F.3d. at 1335.   At this point, the Board could remand the claim for a VA examination or opinion.  However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) (“The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination”); Gardner-Dickson v. Wilkie, No. 19-4765, 2020 U.S. App. Vet. Claims LEXIS 1927 (Panel Order), at *20 (denying petition for a writ of mandamus challenging a remand, but agreeing “with the petitioner that it ‘would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant’s case.’” (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s lumbosacral strain with degenerative disc disease and right knee osteoarthritis are related to his active duty service.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for lumbosacral strain with degenerative disc disease and right knee osteoarthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for hypertension and diabetes For the following reasons, entitlement to service connection for hypertension and diabetes is not warranted.   The Veteran meets the current disability requirement. A January 2011 VA treatment record noted a diagnosis of hypertension. A February 2015 VA treatment record indicated the Veteran received a diagnosis of diabetes in approximately January 2015. There is no lay or medical evidence of record indicating that the Veteran’s hypertension or diabetes manifested in service or within the one-year presumptive period for chronic diseases or is related to service or may be associated with service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran’s service treatment records do not contain any reference to symptoms of, treatment for, or diagnoses relating to hypertension or diabetes. To the extent that the Veteran’s lay statements suggest such a relationship, this is the type of complex medical issue relating to an internal medical process which extends beyond an immediately observable cause-and-effect relationship as to which lay evidence is not competent.  Jandreau, 492 F.3d at 1376, n.4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”).  The Veteran has not been afforded VA examinations in connection with these disabilities.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  However, VA examinations in regard to these claims are not required, as there is no evidence indicating that these disabilities may be associated with active military, naval, or air service, other than the Veteran’s own lay statements alleging nexus in his March 2015 claim and during his September 2020 Board hearing.  There is no evidence indicating that the Veteran’s hypertension or diabetes had their onset in service, are related to service, or manifested within a year after separation from service, other than conclusory generalized lay statements, which are not enough to warrant VA examinations.  Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010).  (Continued on the next page)   For the foregoing reasons, the preponderance of the evidence is against finding that hypertension and diabetes had their onset in service, are related to service, or manifested within a year after separation from service. The benefit of the doubt doctrine is therefore not for application, and the claims must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate 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.