On appeal from the Department of Veterans Affairs (VA) Regional Office in Los Angeles, California
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of service connection for a left lower extremity disorder.
2. Entitlement to service connection for a left lower extremity disorder based on in-service aggravation.
3. Entitlement to service connection for a right knee disorder.
WITNESSES AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Donna D. Ebaugh
INTRODUCTION
The Veteran served on active duty from September 1965 to October 1966.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the RO in Los Angeles, California. Subsequently, the claim was confirmed denied in June 2004.
The Board notes that the Veteran requested a hearing in conjunction with his appeal and was afforded a hearing in September 2007. Unfortunately, the transcript of the hearing is unavailable. In December 2010, the Board informed the Veteran of this circumstance and afforded him the opportunity to undergo another hearing before the Board if he so desired. The Veteran did not respond within 30 days and as indicated in the Board's December 2010 correspondence, the appeal will be decided on the remaining evidence.
The Board also notes that in September 2007, the Veteran submitted additional evidence, with a waiver of review by the RO.
The issues of entitlement to service connection for a left lower extremity disorder and entitlement to service connection for a right knee disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In September 1986, the RO issued a decision that denied service connection for a left lower extremity disorder on the basis that there was no new and material evidence that the Veteran's left lower extremity disorder was related to active service.
2. The evidence added to the record since September 1986, when viewed by itself or in the context of the entire record relates to an unestablished fact that is necessary to substantiate the claim for service connection for a left lower extremity disorder.
CONCLUSION OF LAW
1. The September 1986 RO decision that denied the Veteran's claim of entitlement to service connection for a left lower extremity disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010).
2. The evidence received subsequent to the September 1986 RO decision is new and material and the requirements to reopen a claim of entitlement to service connection for a left lower extremity disorder have been met. 38 U.S.C.A. §§ 5108, 5103(a), 5103A, 5107(b), 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.156, 3.159 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONDuties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Regarding the issue of new and material evidence, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered.
New and Material Evidence
The Veteran is claiming service connection for a left lower extremity disorder which was initially denied in February 1967 by the RO because the evidence did not show a relationship between the disorder and active service. Specific reference was made to the Veteran's service discharge Medical Review Board report that included the finding that the Veteran's left lower extremity disorder preexisted service and was not aggravated by service. The decision was confirmed denied in May 1967, October 1980, and September 1986. The Veteran did not appeal the September 1986 decision and it became final. 38 C.F.R. § 20.1103 (2010).
The Veteran filed to reopen his claim for a left lower extremity disorder in March 2003. His claim was denied in June 2003. He filed a notice of disagreement in June 2004 and specifically noted that he was appealing the June 2003 decision. As an aside, the Board observes that prior to the June 2004 notice of disagreement, he filed a statement indicating a desire to reopen his claim in March 2004 and was denied in June 2004. These facts notwithstanding, his June 2004 notice of disagreement was filed within one year of the June 2003 rating decision and specifically indicated that he disagreed with the June 2003 decision. Therefore, the Board finds that the claim is on appeal from the June 2003 decision.
In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened.
Under the relevant regulation, new evidence is defined as 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. 38 C.F.R. § 3.156(a) (2010).
When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under 38 U.S.C.A. § 5108 (West 2002). See Moray v. Brown, 5 Vet. App. 211, 214 (1993). 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) (2010).
Because the Board has the jurisdictional responsibility to consider whether it was proper to reopen the claim, regardless of the RO's determination on the question of reopening, the Board will determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
In determining whether the new evidence is material, the Board has considered the Court of Appeals for Veterans Claims (CAVC's) recent decision in Shade v. Shinseki, 24 Vet.App. 110 (2010) in which the Court determined that if the McLendon test was met, the Board would have to reopen the claim. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), four factors must be considered in determining whether a medical examination be provided or medical opinion obtained: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id.
In the present case, the new evidence, when combined with the evidence of record, relates to unestablished facts necessary to substantiate the claim, that of a current disability and a possible causation by events in service.
The evidence of record at the time of the last final denial in September 1986 included the Veteran's lay statements, service treatment records, VA outpatient treatment records confirming that the Veteran's left lower extremity disorder is consistent with residuals of polio, and a letter from the Veteran's high school principal indicating his level of physical fitness prior to active duty.
The evidence added to the record since the September 1986 decision consists of additional VA outpatient treatment records, lay statements from the Veteran, and a private medical opinion dated in August 2007 indicating that the Veteran's left lower extremity disorder was aggravated by service. Specifically, the physician indicated that while the Veteran may have had polio with sequelae prior to service, his new signs and symptoms in service were a clear aggravation and likely represented an overuse syndrome. Further, the physician observed that overuse is known to exacerbate the sequelae of post polio/neuromuscular disorders signs and symptoms.
The August 2007 physician further opined that if the Veteran had not been exposed to the rigors of Marine Corps training, he would likely not have developed his new signs and symptoms in his left lower extremities in the summer of 1966. The physician provided reasons as follows: the Veteran entered in healthy fitness status; he was exposed to a rigorous training program; he developed new medical problems in service; it is known that extreme physical activity exacerbates any mild sequel of post polio; he does not have another more likely etiology for his longstanding lower extremity problems; and his left lower extremity had not returned to its preservice condition likely due to excessive additional damage.
The Board notes that in reaching his conclusion, the private physician reviewed service records, post-service treatment records, imaging reports, the Veteran's lay statements, other medical opinions, and medical literature, and determined that the Veteran's current disorder is due to service. Accordingly, as the evidence is new and material, the claim is reopened.
ORDER
Claim to reopen a claim of entitlement to service connection for a left lower extremity disorder is granted.
REMAND
Having determined that the Veteran's claim should be reopened, the Board finds that a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c), (d) (2010).
A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence 1) that the disability existed prior to service and 2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003.
To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006).
The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004).
In the present case, evidence suggests that the Veteranhas a left lower extremity disorder may be due to a preexisting disorder. Specifically, the August 2007 medical opinion indicated that he entered active duty fit for service; however, the private examiner also noted that the Veteran may have had polio with sequelae and that overuse is known to exacerbate the sequelae of post polio/neuromuscular disorders signs and symptoms. However, there is insufficient competent evidence on file for the VA to make a decision on the claim. To that end, given the records of treatment for left lower extremity symptoms in service and competent statements of current left lower extremity symptoms as well as possible aggravation of a preexisting condition, a VA examination is required under McLendon v. Nicholson, 20 Vet. App. 79 (2006) to determine whether his current disorders are causally related to active service.
Additionally, if the RO determines that the Veteran's left lower extremity disorder is related to service, he should be provided an examination regarding his claim for right knee osteoarthritis secondary to his left leg disorder. Specifically, the evidence includes an August 2007 private medical opinion from Craig N. Bash, M.D., indicating that his current right knee osteoarthritis may be due to his left leg disorder. As such, if his left leg disorder is determined to be service-connected, a VA examination would be required under McLendon, 20 Vet. App. 79 to ascertain whether his current right knee disorder is causally related to his service-connected left lower extremity disorder.
The Veteran should be advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2010).
Further, in order to ensure that all records are available, any outstanding VA outpatient treatment records related to his aforementioned disorders should be obtained.
Accordingly, the case is REMANDED for the following action:
1. Obtain VA clinical records, from the VA Medical Center in West Los Angeles, California, for the period from September 2007 to the present. Records of any medical treatment afforded to the Veteran in Columbus, Ohio, Buffalo, NY and Washington, DC should also be obtained and associated with the claim file. Any negative response should be noted in the claims file.
2. Arrange for the Veteran to undergo a VA examination by a neurologist for his left leg disorder, to determine the existence of possible post-polio residuals. The examiner should review the claims folder and note such review in the examination report.
After taking into account the Veteran's history, statements, and the August 2007 private medical opinion of Dr. Bash, the examiner should provide the following opinions:
a). What is the diagnosis or diagnoses relating to the Veteran's current left lower extremity disorder?
b). Is there clear and unmistakable (obvious or manifest, unbeatable) medical evidence to demonstrate that the Veteran's current left lower extremity disorder, including residuals of polio if applicable, existed prior to the Veteran's entrance into service? If so, is there also clear and unmistakable evidence that this disability did not increase in severity beyond its natural progression during active service?
c). If the evidence does not show that clear and unmistakable evidence that his left lower extremity disorder, or polio, preexisted service, the examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or higher) that his left lower extremity disorder had its onset during his active service or is otherwise due to active service.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without a resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation.
3. If it is determined that the Veteran's left leg disorder is service-connected, arrange for the Veteran to undergo a medical examination to identify his claimed right knee disorder. The examiner should review the claims folder and note such review in the examination.
The VA examiner is requested to offer an opinion as to whether it is least as likely as not (a 50 percent probability or higher) that any existing right knee disability (1) had its onset in service, (2) is otherwise etiologically related to his active service, or (3) is due to or related to, or in any way aggravated by his service-connected left lower extremity disability.
All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without a resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation.
4. Upon completion of the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate.
The appellant has the right to submit additional evidence and argument on the 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
