Citation Nr: 18131217
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-08 955A
DATE:	August 31, 2018
ORDER
The application to reopen a claim of entitlement to service connection for a left leg disability is denied 
Entitlement to service connection for arthritis of the knees, back, shoulders, and hips is denied.
FINDINGS OF FACT
1. The Veteran did not appeal or submit evidence within one year of a June 1990 rating decision that denied reopening the issue of entitlement to service connection for a left leg disability.
2. Evidence received since the June 1990 rating decision is cumulative or redundant of the evidence already of record, and does not raise a reasonable possibility of substantiating the left leg disability claim sought to be reopened
3. Arthritis or degenerative diseases of the knees, back, shoulders, and hips were not incurred in or otherwise related to service.

CONCLUSIONS OF LAW
1. The June 1990 rating decision, which denied service connection for a left leg disability, became final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).
2. New and material evidence has not been received since the June 1990 rating decision to reopen a claim of entitlement to service connection for a left leg disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a), 3.303 (2017).
3. The criteria for service connection for arthritis of the knees, back, shoulders, and hips have not been met.  38 U.S.C. §§ 1110, 1101, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1969 to April 1969.  This case comes before the Board of Veterans Appeals (Board) from a June 2013 rating decision of a Department of Veterans Affairs (VA) regional office (RO).  The Veteran testified before the undersigned at a February 2018 Board videoconference hearing.  A hearing transcript is of record.  
The Veterans Claims Assistance Act (VCAA) obligates VA to certain notice and assistance procedures to claimants.  See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Neither the Veteran nor the representative has raised issue with VA’s discharge of its duties to notify or assist.  Consequently, the Board need not address such matters here.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board…to search the record and address procedural arguments when the appellant fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to the duty to assist argument).
1. Whether new and material evidence has been received to reopen a claim of service connection for a left leg disability.
A. Legal Criteria
New and material evidence must be presented or secured to reopen a finally disallowed claim.  New evidence is evidence not previously submitted to VA.  Material evidence is 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, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
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).  Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  For purposes of the “new and material” analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).
 
B. Analysis
In June 1990, the RO denied reopening a claim for entitlement to service connection for a left leg disability, specifically claimed by the Veteran as “old legg-perthes,” or Legg-Calve-Perthes disease.  The Veteran neither initiated an appeal nor submitted additional evidence for the claim within one year of the June 1990 denial, and thus, the decision became final.  See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242 (2010).  The RO previously denied reopening the claim in September 1987, and initially denied service connection in a May 1983 rating decision that stated, “Physical Evaluation Board . . . found a physical disability, namely old legg-perthes which the [Physical Evaluation] Board considered as not incurred in nor aggravated by service.”
While the Veteran’s service treatment records, to include the April 1969 Physical Evaluation Board report, are reflected as associated to the electronic file in March 2014, the Board concludes that such records were physically available and reviewed in promulgation of the historical rating decisions concerning this claim, given multiple references and notes indicating as such, and thus, such records do not constitute newly obtained service department records to warrant reopening of the claim pursuant to 38 C.F.R. § 3.156(c).  See April 1983 Request for Information; May 1983 rating decision; September 1987 rating decision; June 1990 notification letter.
The April 1969 Physical Evaluation Board report reflects that the Veteran’s old Legg-Perthes preexisted service and was not aggravated by service.  The report narrative shows that in his third week of recruit training, the Veteran complained of pain and inability to complete prolonged runs.  The Veteran reported he was diagnosed with Legg-Perthes disease as a child, for which he underwent various treatments to include wearing of a brace, and endorsed constant pain of the left hip since then – especially when engaged in strenuous activity.  The Veteran failed to report any of this medical history at his December 1968 induction examination.  See March 2014 STR - Medical.  The Veteran did not submit a statement in rebuttal to the April 1969 Physical Evaluation Board, and endorsed a statement acknowledging that he understood he was found to have old Legg-Perthes disease, a non-acceptable defect considered as not incurred in or aggravated by service, and would be discharged without any disability retirement pay or compensation whatsoever.
Given that previous denials of this claim were primarily staked upon the April 1969 Physical Evaluation Board report, which serves as competent medical evidence establishing that the Veteran’s left leg disability was neither incurred in nor aggravated by service, the Board must identify some new evidence that relates to the unestablished facts of whether the Veteran’s left leg disability was either incurred in or aggravated by service, and moreover raises a reasonable possibility of substantiation, to thereby reopen the claim.  
The Board notes the submission of relatively recent treatment records that do not relate to whether the Veteran’s left leg disability was incurred in or aggravated by service, and thereby do not constitute material evidence.  See December 2011, June 2018 Medical Treatment Record.  The Veteran also submitted treatment records of the Veteran’s pre-service treatment of Legg-Perthes disease; however, these records were noted as reviewed by previous rating decisions, and are thereby cumulative and redundant.  See April 2014 Medical Treatment Record; September 1987 rating decision.  Moreover, such records show a September 1962 private discharge summary that reflects the Veteran received a discharge diagnosis of Legg-Perthes disease as healed with residual deformity, contrary to the representative’s assertion that the Veteran had a “childhood illness that was resolved and cured.”  See February 2018 Board hearing transcript at 15.  The Board finds such evidence to only further support the April 1969 PEB’s findings that the Veteran suffered from a preexisting disability that was neither incurred in nor aggravated by the Veteran’s service.  Additionally, the undersigned granted the Veteran multiple extensions of time to obtain and submit competent medical evidence to indicate that the Veteran’s left leg disability had fully resolved prior to service and somehow resurfaced because of service, or was otherwise incurred in or aggravated by service.  To date, no such evidence has been received, and no evidence of record raises a reasonable possibility of substantiating the claim; whether by supporting a new theory of entitlement, triggering any further duty to assist, or otherwise.

Considering the above, the Board finds new and material evidence has not been received to warrant reopening the claim for a left leg disability, and the application to reopen the claim is denied.
2. Entitlement to service connection for arthritis of the knees, back, shoulders, and hips.
A. Legal Criteria
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a).  Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  VA may also grant service connection for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 
For veterans that served 90 days or more on active duty during a war period or after December 31, 1946, VA shall presume certain chronic diseases, such as arthritis, as service connected if the disease manifests to a compensable degree within one year following discharge from service.  38 C.F.R. §§ 3.307, 3.309(a).  Additionally, presumptive service connection is available for a chronic disease defined by 38 C.F.R. § 3.309(a) even if such disease is not definitively shown as chronic in service, if the evidence demonstrates a continuity of symptomatology since service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
In rendering a decision on appeal, the Board must analyze the competency, credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335-37 (Fed. Cir. 2006).  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) (2017); Bruce v. West, 11 Vet. App. 405 (1998).  
The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
B. Analysis
The Veteran contends that he suffers from arthritis of the knees, back, shoulders, and hips due to service.  A separately developed claim for degenerative bone disease of the hips has been incorporated into this overarching arthritis claim that includes the hips.  See February 2018 Board hearing transcript at 2.  While technically consisting of multiple subordinate claims for separate disabilities, the collective theory of entitlement for these disabilities is the same – that arthritis or degenerative diseases of the Veteran’s claimed joints were incurred in or relate to the Veteran’s one month and eleven days of active service as a Marine recruit.  As a preliminary matter, presumptive service connection for arthritis as a chronic disease is barred because the Veteran did not serve at least 90 days on active duty.  38 C.F.R. §§ 3.307.
A February 2012 private treatment record reflects a diagnostic impression of “degenerative arthritis involving multiple joints, most symptomatic are his shoulders, hips, and low back.”  Regardless of whether the Veteran suffers from current disabilities of his various joints as claimed, the Board does not find sufficient evidence to relate such disabilities to his military service.  
Service treatment records are devoid of any diagnosis of arthritis or degenerative diseases of the Veteran’s claimed joints.  Post-service treatment records do not specifically relate any degenerative diseases to the service or a service-connected disability.  Rather, a series of private treatment records dated between June 1977 and May 1979 relates the Veteran’s back, left hip, and left knee pain to a post-service June 1977 accident the Veteran experienced while working in construction.  See May 1983 Medical Treatment Record.  As to the remaining claimed joint disabilities, no competent medical evidence of record indicates that such disabilities were incurred in military service.  
Essentially, the Veteran has proffered only his lay contentions that his various claimed arthritis and degenerative disabilities were caused by service.  At his February 2018 Board hearing, the Veteran specifically claimed that his disabilities were caused by increased incentive training including longer runs, being hit with a stick while wearing a pan on his head, being thrown into a swamp headfirst and remaining there for 24 hours, and being thrown headfirst into a cattle car.  Essentially, the Veteran asserts that the general rigors of service are the cause for his current disability.  However, the Veteran does not possess requisite medical expertise to offer competent evidence as to the etiology of his claimed disabilities.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  
Ultimately, the record either relates several of the Veteran’s claimed joint pains to a post-service work accident, or is otherwise devoid of credible and competent lay or medical evidence to establish that the Veteran’s remaining claimed arthritis and degenerative joint diseases warrant service connection.  Likewise, the Board does not find the record sufficiently indicates that any of the Veteran’s claimed disabilities could relate to service to thereby warrant further medical examination by VA.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Again, the undersigned afforded the Veteran multiple extensions from the date of his Board hearing to submit competent medical evidence in furtherance of his claim, and received none.
Considering the above, the collective claim for entitlement to service connection for arthritis of the knees, back, shoulders, and hips is denied.
[SIGNATURE ON NEXT PAGE]
 
JONATHAN B. KRAMER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Sean Raymond, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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