Citation Nr: 21067377 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-24 498 DATE: November 4, 2021 ORDER Reopening of service connection for neck injury residuals is denied. Reopening of service connection for right foot toes is denied. Reopening of service connection for a headache disorder is denied. Reopening of service connection for a back disorder is granted. Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. REMANDED Service connection for a back disorder is remanded. FINDINGS OF FACT 1. The period of service from January 17, 1989 to January 16, 1993 is not a bar to the payment of VA benefits, but the period of service from February 24, 1994 to May 11, 1999 is a bar to payment of VA benefits. 2. An unappealed January 2004 rating decision denied service connection for neck injury residuals, headaches, back, and right foot toe disorders finding no current disability and no nexus to service. 3. The evidence received since the January 2004 rating decision does not relate to an unestablished fact of a current neck, headache, or right foot toe residual disorder to help substantiate a claim for service connection. 4. The evidence received since the January 2004 rating decision relates to an unestablished fact of a current back disorder to substantiate a claim for service connection. 5. The Veteran does not have, nor has he had at any time proximate to or during the course of this appeal, a current right or left knee disability. CONCLUSIONS OF LAW 1. The January 2004 rating decision denying service connection for neck injury residuals, headaches, back, and right foot toe disorders became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the January 2004 rating decision is not new and material to reopen service connection for neck injury residuals, headaches, and/or a right foot toe disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Evidence received since the January 2004 rating decision is new and material to reopen service connection for a back disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). 5. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from January 1989 to January 1993, and from February 1994 to May 1999. The Veteran's discharge for the period of service from February 24, 1994 to May 11, 1999 is dishonorable, which is considered a bar to payment of VA benefits. The Veteran requested a hearing before the Board in the May 2016 substantive appeal, via a VA Form 9. The record indicates that the Veteran did not attend the scheduled hearing in November 2019. Another hearing was scheduled for February 2019, which was postponed. Subsequently, the Veteran did not attend the scheduled hearing in September 2021. As the Veteran has not presented any reasons for not attending the September 2021 Board hearing, the hearing request has been withdrawn. 38 C.F.R. § 20.704. 1. Reopening Service Connection for Neck Injury Residuals is Denied. 2. Reopening Service Connection for Right Foot Toes is Denied. 3. Reopening Service Connection for Headaches is Denied. 4. Reopening Service Connection for Back Disorder is Granted. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See 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, 513 (1991). Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 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. In a January 2004 rating decision, the VA Regional Office (RO) denied service connection for neck injury residuals, headaches, back, and right foot toe disorders, finding no current disability and no nexus to service. The Veteran did not appeal the rating decision, and new and material evidence was not received during the one-year appeal period; thus, the January 2004 rating became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a),(b), 20.302, 20.1103. As to reopening service connection for neck injury residuals, headaches, and a right foot toe disorder, new evidence received since the January 2004 rating decision includes Social Security Administration (SSA) treatment records and statements from the Veteran reflecting in-service injuries and pain. Having reviewed these records, the Board finds this evidence, by itself or when considered with previous evidence of record, does not reflect a current disability of neck injury residuals, headaches, and/or a right foot toe disorder. No examiner has diagnosed a neck injury residual disorder, a headache disorder, and/or a right foot toe disorder, and the evidence does not show functional impairment of the neck or toes. See also SSA treatment records; Saunders v. Wilkie, 886 F.3d 1356 (2018). The SSA examination report associated with the record reflects the examiner did not discern any residual neck disorder, a headache disorder, and/or a right foot toe disorder. The material question is whether the Veteran has a current neck injury residual disorder, a headache disorder, and/or a right foot toe disorder. There is no new evidence suggesting a diagnoses or current functionally impairing disability. Under these circumstances, the Board finds that new and material evidence to reopen service connection has not been received. As such, the RO's January 2004 rating decision remains final, and the appeal to reopen service connection for neck injury residuals, headaches, and/or a right foot toe disorder must be denied. As to reopening service connection for a back disorder, the SSA examination report reflects a current diagnosis of mild rotoscoliosis with degenerative changes. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection for a back disorder. 38 C.F.R. § 3.156(a). 5. Service Connection for Right Knee Disorder 6. Service Connection for Left Knee Disorder The Veteran contends that he has a right and left knee disorder, and that it is related to service. An October 2014 statement reflects the Veteran indicated that he developed knee pain during service, which went untreated since service separation. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against the finding that the Veteran has a current left right or left disability, either by diagnosis or by functional impairment, including based on lay evidence reports. See SSA treatment records; Saunders. The competent evidence of record does not demonstrate a current diagnosis of a right or left knee disability. Significantly, the SSA examination report reflects that the examiner did not discern any knee disability, either by diagnosis or by functional impairment. While the Board is cognizant of the ruling in Saunders, which held that pain alone can constitute a disability if it is functionally impairing, in this case the evidence has not demonstrated, and the Veteran has not alleged, that knee pain has resulted in an impairment of earning capacity. In addition, while the Veteran has asserted subjective knee pain, which in and of itself does not establish a disability, the SSA examination report reflects that the examiner did not discern functional impairment of either knee. As such, in this case, neither the lay nor the medical evidence shows a functionally impairing disability of either knee. In this case, the evidence shows no right or left knee disability at any time during the current claim, including immediately prior to the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing that a recent diagnosis of disability prior to a veteran filing a claim is relevant evidence on the question of current disability). For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a right or left knee disorder, and the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 7. Service Connection for Back Disorder The Veteran contends that he has a back disorder related to service. An October 2014 statement reflects the Veteran indicated a September 1989 service treatment record reflects treatment for back pain and that the back pain was related to the currently diagnosed back disorder. The SSA examination report reflects currently diagnosed mild rotoscoliosis with degenerative changes, and a September 1989 service treatment record reflects treatment for back pain. To date, no VA medical opinion has been obtained. As such, the Board will remand the issue for a VA medical opinion. The issue of service connection for a back disorder is REMANDED for the following action: Obtain a VA medical opinion addressing the nature and etiology of the current back disorder. The VA examiner should provide the following opinion with supporting rationale: Is it at least as likely as not (50 percent or higher degree of probability) that the back disorder was caused by or is otherwise related to service? Please specifically address the September 1989 service treatment record reflecting an incident of back pain, as well as SSA treatment records reflecting the Veteran reported that a back disorder began in 1999. The VA examiner should note that the Veteran's discharge for the period of service from February 24, 1994 to May 11, 1999 is dishonorable, which is considered a bar to payment of VA benefits. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Tenney, 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.