Citation Nr: 21076882 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-23 086 DATE: December 28, 2021 ORDER Entitlement to service connection for a right knee disability is denied. New and material evidence having not been received the Veteran's claim for entitlement to service connection for an allergy due to wool is not reopened. New and material evidence having not been received the Veteran's claim for entitlement to service connection for urticaria (claimed as skin irritation) is not reopened. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. At no time during, or prior to, the pendency of the claim does the Veteran have a current diagnosis of a right knee disability. 2. In a final decision issued in May 2003, the RO denied the claim for service connection for an allergy due to wool. 3. Evidence added to the record since the final May 2003 denial is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an allergy due to wool. 4. In a final decision issued in May 2003, the RO denied the claim for service connection for urticaria (claimed as skin irritation). 5. Evidence added to the record since the final May 2003 denial is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for urticaria (claimed as skin irritation). CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The May 2003 rating decision that denied the Veteran's claim of entitlement to service connection for an allergy due to wool is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has not been received to reopen the claim of entitlement to service connection for an allergy due to wool. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 4. The May 2003 rating decision that denied the Veteran's claim of entitlement to service connection for urticaria (claimed as skin irritation) is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 5. New and material evidence has not been received to reopen the claim of entitlement to service connection for urticaria (claimed as skin irritation). 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1993 to September 2001. In August 2021 the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Petitions to Reopen and Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 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. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is satisfied when the Veteran has a disability at the time, he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran's filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292 (1991). Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (b) and (c); 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The 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, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). New and material evidence having not been received the Veteran's claim for entitlement to service connection for an allergy due to wool is not reopened. The Veteran initially claimed entitlement to service connection for an allergy due to wool in April 2002, which was denied in a decision issued in February 2003. However, subsequent to the February 2003 decision, additional evidence was received. Therefore, the RO reconsidered the claim in light of the new evidence and continued the prior denial in a May 2003 rating decision. At the time of the May 2003 decision, the RO considered the Veteran's service treatment records as well as post-service treatment records and a May 2003 examination. The RO found that although the Veteran's service records reflected that she developed hives and welts when wearing wool, under VA laws such was not considered a disability. Therefore, the RO denied the Veteran's claim for service connection. The Veteran was advised of the decision and her appellate rights. However, no further communication regarding her claim of entitlement to service connection for an allergy due to wool was received until December 2014, when VA received her application to reopen such claim. Therefore, the May 2003 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for an allergy due to wool was received prior to the expiration of the appeal period stemming from the May 2003 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The evidence received since the May 2003 rating decision includes additional treatment records and lay statements as well as hearing testimony. However, while such records document treatment for a variety of conditions, they do not reflect any findings which indicate that the Veteran suffers from a disability under VA law due to an allergy to wool or relate such a disability to the Veteran's active-duty service. Additionally, while the Veteran has submitted statements regarding the onset and continuity of her allergy due to wool during the course of the appeal, such are duplicative of her contentions that were previously of record at the time of the May 2003 rating decision. Specifically, she continues to contend that prior to her deployment she had no known allergy to wool, and that such developed while on active duty. Therefore, the Board finds that the evidence received since the May 2003 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for an allergy due to wool. Consequently, new and material evidence has not been received to reopen such claim and the Veteran's appeal must be denied. New and material evidence having not been received the Veteran's claim for entitlement to service connection for urticaria (claimed as skin irritation) is not reopened. The Veteran initially claimed entitlement to service connection for urticaria (claimed as skin irritation) in April 2002, which was denied in a decision issued in February 2003. However, subsequent to the February 2003 decision, additional evidence was received. Therefore, the RO reconsidered the claim in light of the new evidence and continued the prior denial in a May 2003 rating decision. At the time of the May 2003 decision, the RO considered the Veteran's service treatment records as well as post-service treatment records and a May 2003 examination. The RO found that while the May 2003 examination noted an unexplained chronic recurrent skin irritation, no diagnosis had been established. Therefore, the RO concluded that as the evidence failed to show a disability for which compensation could be established and service connection was denied. The Veteran was advised of the decision and her appellate rights. However, no further communication regarding her claim of entitlement to service connection for urticaria (claimed as skin irritation) was received until December 2014, when VA received her application to reopen such claim. Therefore, the May 2003 rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156 (b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for urticaria (claimed as skin irritation) was received prior to the expiration of the appeal period stemming from the May 2003 rating decision. See also Bond, 659 F.3d at 1367; Roebuck, 20 Vet. App. at 316; Muehl, 13 Vet. App. at 161-62. The evidence received since the May 2003 rating decision includes additional treatment records and lay statements as well as hearing testimony. However, while such records document treatment for a variety of conditions, they do not reflect any findings which indicate that the Veteran suffers from urticaria or another diagnosed skin condition nor have they related such a disability to the Veteran's active-duty service. Additionally, while the Veteran has submitted statements regarding the onset and continuity of her skin irritation during the course of the appeal, such are duplicative of her contentions that were previously of record at the time of the May 2003 rating decision. Specifically, she continues to contend that prior to her deployment she had no skin conditions or disabilities and that such developed while on active duty. Therefore, the Board finds that the evidence received since the May 2003 rating decision is cumulative or redundant of the evidence of record at the time of the prior decision and does not raise a reasonable possibility of substantiating the Veteran's claim of service connection for urticaria (claimed as skin irritation). Consequently, new and material evidence has not been received to reopen such claim and the Veteran's appeal must be denied. Entitlement to service connection for a right knee disability is denied. The Veteran generally contends that she suffers from a right knee disability. While she has alleged that she has discomfort and pain, she has presented no specific argument in support of this appeal. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of a right knee disability. The Veteran's post-service treatment records are also silent for any complaints, treatment, or diagnosis of a right knee disability. Furthermore, while the Veteran has generally reported that her right knee disability began in or was caused by her active-duty service, the evidence of record does not support the Veteran's claim. There is simply no indication of any right knee disability or symptoms related to such. Consequently and unfortunately, the Board finds that VA is under no obligation to provide the Veteran with an examination in connection with her claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159 (c) (4) presents a low threshold for the requirement of a VA examination). The Board finds that service connection is not warranted for the Veteran's claimed right knee disability as the probative evidence of record fails to demonstrate a current disability related to the Veteran's military service. In the instant case, the probative evidence of record fails to demonstrate a current diagnosis of a right knee disability. While the Board has also considered the Court's holding in Romanowsky, supra, there is also no probative evidence of a recent diagnosis of this disability prior to the Veteran's claim. The Veteran's service treatment records and post-service treatment records are silent for any complaints, treatment, or diagnosis of a right knee disability. In this regard, the Board notes that the Veteran is competent to report her own symptoms or matters within her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the matter of a medical diagnosis for a disability not capable of lay observation, such as that of issue here, is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Specifically, the diagnosis of a right knee disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and requires the administration and interpretation of specialized testing. In the instant case, there is no suggestion that the Veteran has had any medical training. Therefore, as the Veteran does not have the appropriate medical training and expertise to competently self-diagnose a right knee disability, the lay assertions in this regard have no probative value. Jandreau, supra at 1377 n.4 ("[s]ometimes 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"); see also Woehlaert, 21 Vet. App. at 456 (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.30, 3.310. Thus, where, as here, the probative evidence indicates that the Veteran does not have a current diagnosis of a right knee disability for the entire appeal period, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a right knee disability. As such, that doctrine is not applicable in the instant appeal, and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to service connection for a left ankle disability is remanded. The Veteran contends that she suffers from a left ankle disability as a result of her active-duty service. Specifically, she alleges that she suffered an ankle sprain during service and has continued to suffer ankle sprains periodically ever since which have resulted in strained and injured ligaments. The Veteran's service treatment records reflect that the Veteran suffered a left ankle injury, a sprain, in October 1993. However, the remainder of her records are silent for any additional complaints or treatment for such. Post-service records reflect the Veteran's reports of a history of chronic swelling and ankle instability. In November 2009, the Veteran underwent an MRI which revealed a diagnosis of leg strain left peroneus longus muscle. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C. § § 5103A (d); 38 C.F.R. § § 3.159 (c)(4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon, 20 Vet. App. at 79. In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board notes that no examination has been conducted to determine the nature and etiology of the Veteran's claimed left ankle disability, and therefore an examination is required. Therefore, on remand a VA examination with an etiological opinion should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Schedule the Veteran for an examination with an appropriate VA examiner to determine the likely etiology of her claimed left ankle disability. The claims file must be reviewed by the examiner in conjunction with the examination. After review of the claims file and examining the Veteran, the examiner is requested to offer an opinion that specifically addresses the following questions: a) The examiner should identify all current left ankle disabilities. b) For each currently diagnosed left ankle disability, is it at least as likely as not (a 50 percent or higher probability) that such disability is related to her service, to include her left ankle injury therein. A thorough explanation of any and all opinions is requested, a restatement of the facts is insufficient. In rendering his or her opinion, the examiner MUST consider and weigh the Veteran's relevant lay statements of record. The examiner is reminded that dismissing the Veteran's statements as lay is not sufficient. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiner must provide a complete rationale for all opinions and conclusions reached. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.