Citation Nr: 0502897 Decision Date: 02/07/05 Archive Date: 02/15/05 DOCKET NO. 03-01 153 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for a neck disorder. 2. Whether new and material evidence has been received to reopen the claim for service connection for a right knee disorder. REPRESENTATION Appellant represented by: American Red Cross ATTORNEY FOR THE BOARD T. L. Konya, Associate Counsel INTRODUCTION The veteran served on active duty from January 1989 to October 1990. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2002 decision by the RO in Washington, D.C., which found that new and material evidence had not been submitted to reopen the previously denied claims of entitlement to service connection for a neck disorder and a right knee disorder. The case was certified to the Board by the Pittsburgh, Pennsylvania Regional Office. The Board notes that a claim of service connection for a neck disorder and right knee disorder was denied by the RO in an unappealed May 1991 decision. In an August 2003 supplemental statement of the case, the RO appears to have found that new and material evidence had been submitted to reopen claims of entitlement to service connection for neck and right knee disorders. The RO then denied the claims on the merits. The Board, however, is required to independently consider whether the veteran has submitted new and material evidence warranting the reopening the claims before considering either claim on the merits. Barnett v. Brown, 8 Vet. App 1 (1995). As such, the issues in appellate status are as listed hereinabove. The issues of entitlement to service connection for a neck 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 a May 1991 decision, the RO denied the veteran's claims of entitlement to service connection for neck and right knee disorders; the decision was not appealed; and it is final. 2. Evidence received since the May 1991 RO decision is new and material, and when considered by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claims. CONCLUSION OF LAW The evidence received since the RO denied entitlement to service connection for neck and right knee disorders in May 1991 is new and material, and the claims are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), is applicable in this case, however, as this decision is favorable to the extent indicated below, a detailed discussion of VA's compliance with the Act is obviated at this time. The Board notes that the regulation pertaining to the definition of new and material was amended during the pendency of this appeal. Cf. 38 C.F.R. § 3.156 (2001) with 38 C.F.R. § 3.156 (2003). That amendment, however, is effective only for claims filed on or after August 29, 2001. Consequently, the current appeal will be decided under the old version of § 3.156(a) as is outlined in the decision below. Factual Background The evidence on file at the time of the May 1991 unappealed rating action which denied service connection for a neck disorder and a right knee disorder, included some of the veteran's service medical records, an undated lay statement and his November 1990 statement. Included with the service medical records, at the time of the unappealed May 1991 rating decision, was an October 1989 military police desk blotter which showed that a bunker collapsed on top of the veteran and he was taken to the Infirmary. Service medical records included a February 1990 physical profile form limiting the veteran from running or jumping due to a retropatellar pain syndrome. A September 1990 examination, performed for purposes of a Chapter 14 discharge examination, revealed that the veteran's neck and lower extremities were clinically evaluated as normal. In an undated lay statement submitted on behalf of the veteran by a fellow soldier, he reported that the appellant was involved in an accident whereby a log fell on him and hit him in the head. He further reported that the platoon sergeant would deny the veteran the opportunity to take sick call and he would tear up his sick slips. In November 1990, the RO received a statement from the veteran which indicated that while serving in the military, he injured his knee when he fell on a step. In May 1991, the RO denied service connection for a neck disorder and right knee disorder. At that time the RO determined that the disorders were was not incurred in or aggravated by military service during the regulatory period. The veteran was notified of that decision and of his appellate rights. He did not appeal that determination, and it is now final. 38 U.S.C.A. § 7105 (West 2002). The veteran may reopen his claim by the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2001). In this case, new and material evidence means evidence not previously submitted to VA decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative or redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening the veteran's claim unless it is inherently false or untrue, or is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence received subsequent to the May 1991 RO decision consisted of statements from the veteran, private medical statements from R.G., M.D., and various lay statements. In a lay statement dated June 2001, Sergeant W.F.J., reported that he had known the veteran since 1989 and when he met him, he was recovering from an injury he sustained while on active duty. W.F.J. further reported that since the veteran's discharge, he had continued problems which were believed to be a result of an incident in service. An undated lay statement from an acquaintance of the veteran, essentially reiterated the same assertions. In another undated lay statement from SSG C.K., he reported that the veteran indicated to him that he was to have a spinal tap performed April 20, 1990. Private medical statements from R.G., M.D., dated July 2001, September 2001 and March 2002, note that the veteran suffered from a small herniation of the intervertebral disk at C6-7, slight protrusions at C3-4, C4-5 and C5-6 and spondylarthritis. In a January 2003 statement, R.G. gave a history of an incident which occurred while the veteran was in the Army in 1989. R.G. reported that a bunker in which the veteran was sitting on collapsed, and the appellant was hit in the back of the head and neck by a wooden beam. R.G. reported that the veteran was treated and the diagnosis was presumably a contusion at the back of the head and cervical spinal column with craniocerebral trauma. R.G. opined that the recurring pain that the veteran experienced in the area of the cervical spinal column and the head could of had their origin in the rather serious accident the veteran suffered while in service. In July 2003, the RO received additional service medical records from the veteran. In a July 1989 treatment note, the veteran presented with complaints of right knee pain for two months. He noted that whenever he ran, he experienced sharp pain and swelling. The diagnosis was possible meniscus tear. Physical profile forms dated in December 1989 and February 1990 show tendonitis of the right knee and retropatellar pain syndrome. The Board finds the additional evidence of record submitted after the May 1991 rating decision, is new and material evidence and is not cumulative or redundant of evidence previously received. Furthermore, it is so significant that it must be considered in order to fairly decide the merits of the claims. 38 C.F.R. § 3.156(a) (2001). Therefore, the claims are reopened. ORDER New and material evidence having been submitted, the claims of entitlement to service connection for neck and right knee disorders are reopened. REMAND Having reopened the veteran's claim for service connection for a neck disorder and right knee disorder, the case must now be considered based on a de novo review of the record. VA's duty to assist the claimant while developing his claim, pursuant to 38 U.S.C.A. § 5103A (West 2002), requires VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. The duty to assist includes obtaining a medical opinion whenever such an opinion is necessary to make a decision on the claims. In the case at hand, a medical opinion is necessary, pursuant to 38 C.F.R. § 3.159(c) (2004), based on a thorough review of the record, to include the veteran's service medical records, as to any current whether it is at least as likely as not that any current neck and/or right knee disorder are/is related to service. The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance therewith. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. In view of the foregoing, this case is REMANDED to the RO (via the AMC) for the following, to be completed in sequential order: 1. The RO should send the veteran a letter explaining the VCAA, including the duty to assist and notification provisions contained therein. In doing so, the letter should explain what, if any, specific information (medical or lay evidence) is necessary to substantiate the claims on appeal. A general form letter not specifically addressing benefits and entitlements at issue, is not acceptable. The letter should inform the veteran of which portion of the information and evidence he is to provide, and which part, if any, VA will attempt to obtain on his behalf. 2. The RO contact the veteran and obtain the names and addresses of all medical care providers, VA or non-VA who have treated him for neck and/or right knee disorders which have not already been made a part of the record. After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. The veteran should also be requested to provide copies of all pertinent evidence in his possession to include any and all service medical records. All attempts to procure records should be documented in the file. If the RO cannot obtain the records, a notation to that effect should be inserted in the file. The veteran should be informed of failed attempts to procure records in order to provide him the opportunity to obtain and submit those records for VA review. 3. Thereafter, the RO should schedule the veteran for a VA orthopedic examination. The RO should arrange for his claims file, to include his service medical records, to be reviewed by the examining physician. All indicated testing should be accomplished. It is imperative that the examining physician reviews the evidence in the claims folder, including the service medical records, and is provided a complete copy of this REMAND. The physician should offer an opinion as to whether it is at least as likely as not any diagnosed neck and/or right knee disorder were incurred or aggravated in-service. The rationale underlying each opinion expressed and conclusion reached, citing, if necessary, to specific evidence in the record, must be noted in the medical report, which is to be associated with the other evidence on file in the veteran's claims folder. 4. The veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications must be associated with the claims folder. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 5. The RO must review the claims file and ensure that there has been full compliance with all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2004), and that all appropriate development has been completed (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. Thereafter, the RO should issue a new rating decision and readjudicate the issues on appeal. The RO is advised that they are to make a determination based on the law and regulations in effect at the time of their decision, to include any further changes in VCAA and any other applicable legal precedent. If the benefits sought on appeal remain denied, the veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs