Citation Nr: 0810686	
Decision Date: 04/01/08    Archive Date: 04/14/08

DOCKET NO.  05-24 549	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether new and material evidence had been presented to 
reopen the claim of service connection for a left knee 
disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran 


ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran, who is the appellant, served on active duty from 
March 1968 to September 1994.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision, dated in January 2005, of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.  

In January 2003, the veteran appeared at a hearing before the 
undersigned Veterans Law Judge.  A transcript of the hearing 
is in the file.  At the hearing, the veteran submitted 
additional evidence and waived the right to have the evidence 
initial consideration by the RO.  38 C.F.R. § 20.1304(c). 

As the claim is reopened, the claim is REMANDED for further 
evidentiary development to the RO via the Appeals Management 
Center in Washington, DC.


FINDINGS OF FACT

1. In a rating decision in August 1995, the RO denied the 
claim of service connection for a left knee disability on the 
basis that there was no evidence of current disability; after 
the veteran was notified of the adverse determination and of 
his procedural and appellate rights, he did not appeal that 
part of the RO's decision. 

2. The additional evidence present since the rating decision 
of August 1995 relates to an unestablished fact necessary to 
substantiate the claim of service connection for a left knee 
disability. 




CONCLUSIONS OF LAW

1. The rating decision by the RO, dated in August 1995, 
denying service connection for a left knee disability, became 
final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. § 3.104(a) 
(2007).  

2. The additional evidence presented since the rating 
decision of August 1995 by the RO, denying service connection 
for a left knee disability, is new and material, and the 
claim of service connection for a left knee disability is 
reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2007). 


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate the claim.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) VA must notify a claimant of the 
information and evidence needed to substantiate a claim, 
which information and evidence VA will obtain, and which the 
claimant must provide.  VA must request any evidence in a 
claimant's possession that pertains to the claim.  38 C.F.R. 
§ 3.159.  

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: 
1) veteran status; 2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 



In a new and material evidence claim, the VCAA notice must 
include the evidence and information that is necessary to 
reopen the claim and the evidence and information that is 
necessary to establish the underlying claim for the benefit 
sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).

The VCAA notice was intended to be provided before the 
initial unfavorable adjudication by the RO.  
Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The RO provided pre-and post- adjudication VCAA notice by 
letters, dated in April 2004, in September 2004, and in March 
2006.  The notice included the type of evidence needed to 
substantiate the claim to reopen, namely, new and material 
evidence, that is, evidence, which was not redundant or 
cumulative of evidence previously considered and pertained to 
the reason the claim was previously denied, that is, the 
absence of evidence of current left knee disability.  The 
notice included the type of evidence necessary to establish 
the underlying claim of service connection, namely, evidence 
of an injury or disease or event, causing an injury or 
disease, during service; evidence of current disability; and 
evidence of a relationship between the current disability and 
the injury or disease or event, causing an injury or disease, 
during service.  The veteran was notified that VA would 
obtain service records, VA records, and records from other 
Federal agencies, and that he could submit private medical 
records or authorize VA to obtaining private medical records 
on his behalf.  The notice included the provisions for the 
effective date of the claim and for the degree of disability 
assignable. 

As for content of the VCAA notice, the documents 
substantially comply with the specificity requirements of 
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying 
evidence to substantiate a claim and the relative duties of 
VA and the claimant to obtain evidence), of Charles v. 
Principi, 16 Vet. App. 370 (2002) (identifying the document 
that satisfies VCAA notice); of Pelegrini v. Principi, 
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); of 
Dingess v. Nicholson, 19 Vet. App. 473 (notice of the 
elements of the claim); and of Kent v. Nicholson, 20 Vet. 
App. 1 (2006) (notice of the evidence necessary to reopen the 
claim and the evidence necessary to establish the underlying 
claim for the benefit sought). 

To the extent that the VCAA notice about the degree of 
disability assignable was provided after the initial 
adjudication of the claim, the notice was defective, but as 
the claim to reopen is resolved in the veteran's favor, there 
is no possibility of any prejudice to the veteran with 
respect to the limited timing error of the VCAA notice.  
Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)

Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable 
efforts to identify and obtain relevant records in support of 
the claim.  The veteran was afforded the opportunity to 
testify at a hearing before the undersigned Veterans Law 
Judge, at which he submitted additional evidence.  The RO has 
obtained the veteran's service medical records as well as VA 
records and private medical records.   

In a claim to reopen, under the duty to assist, a VA medical 
examination or medical opinion is not authorized unless new 
and material evidence is presented.  38 C.F.R. 
§ 3.159(c)(4)(iii).  Here, however, that was done when the RO 
afforded the veteran a VA examination in October 2004.  

Lastly, because the Board finds that new and material has 
been submitted, the case will be remanded for further 
evidentiary development.  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Procedural and Factual Background

In a rating decision in August 1995, the RO denied the claim 
of service connection for a left knee disability on the basis 
that there was no evidence of current disability.  After the 
veteran was notified of the adverse determination and of his 
procedural and appellate rights, he did not appeal that part 
of the RO's decision and the rating decision by the RO became 
final based on the evidence then of record.  38 U.S.C.A. 
§ 7105; 38 C.F.R. § 3.104. 

The evidence then of record is summarized below. 

The service medical records show that in April 1993 the 
veteran complained of left knee pain.  There was no history 
of a specific injury.  The assessment was left knee 
bursitis/tendinitis.  In May 1993, an X-ray of the left knee 
was negative for any bony abnormality.  Later in May 1993, a 
bone scan revealed degenerative changes secondary to stress 
related periosteal reactions.  On retirement examination, no 
left knee abnormality was identified by complaint or finding.

After service, on VA examination in June 1995, the veteran 
had no left knee symptom.  The examiner found no abnormality 
of the left knee.  X-rays revealed no degenerative changes.  
There was no pertinent diagnosis.  

Current Application

Although the prior rating decision by the RO of August 1995 
became final, it may nevertheless be reopened if new and 
material evidence is presented.  38 U.S.C.A. §§ 7105(c) and 
5108. 

Whether a previously denied claim should be reopened is a 
jurisdictional matter that must be addressed by the Board 
before the Board can consider the underlying claim. 
Therefore, regardless of the RO's decision, the Board must 
initially address the question of whether new and material 
evidence has been presented to reopen the claim. Jackson v. 
Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The veteran submitted the current application to reopen the 
claim of service connection in February 2004. 

As the application was received after August 29, 2001, the 
current regulatory definition of new and material evidence 
applies.  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).

For the purpose of establishing whether new and material 
evidence has been submitted, the credibility of the evidence, 
although not its weight, is to be presumed.  Justus v.  
Principi, 3 Vet. App. 510, 513 (1992).

Additional Evidence 

Records of a service department disclose that in January 1998 
the veteran complained of left knee pain after he slipped at 
work.  An X-ray was normal. 

On VA examination in October 2004, the veteran stated that he 
started to have left pain during service and his condition 
has worsened over the years.  An X-ray was normal.  The 
diagnosis was a left knee strain, resolved.  

In a statement, dated in November 2007, J.B.B. Jr, MD, stated 
that he had reviewed the veteran's Army records and a bone 
scan dated in 1993 and had examined the veteran.  The 
physician concluded that the veteran's current left knee 
problem was more than likely related to the injury for the 
veteran had in April 1993.  The records of the physician show 
that in May 2005 the pertinent finding was myxoid 
degeneration and the diagnosis was internal derangement of 
the left knee. 

Analysis

As the claim was previously denied because there was no 
evidence of current left knee disability and as the 
additional evidence documents a current diagnosis of internal 
derangement of the left knee, which is presumed credible for 
the sole purpose of determining whether the case should be 
reopened, the evidence is new and material because it relates 
to the unestablished fact necessary to substantiate the 
claim, that is, evidence of current disability, and as the 
additional evidence raises a reasonable possibility of 
substantiating the claim, the claim is reopened.


ORDER

As new and material evidence has been presented, the claim of 
service connection for a left knee disability is reopened.  
To this extent only, the appeal is granted.


REMAND

Although the claim of service connection is reopened, the 
Board determines that further evidentiary development is 
required under the duty to assist.  Accordingly, the claim is 
REMANDED for the following action.

1. Schedule the veteran for a VA 
examination by an orthopedist to 
determine whether the veteran has a 
current left knee disability and, if so, 
whether it is at least as likely as not 
that the current left knee disability is 
related to the documented complaint of 
left knee pain in April 1993, which was 
assessed as bursitis/tendonitis. The 
claims folder must be made available to 
the examiner for review. 

In formulating the opinion, the examiner 
is asked to comment of the bone scan in 
May 1993, during service, revealing 
degenerative changes secondary to 
stress-related periosteal reactions, and 
the finding in May 2005 of myxoid 
degeneration, resulting in the diagnosis 
of internal derangement of the left knee 
by a private physician.  



The examiner is asked to consider that 
the term "at least as likely as not" does 
not mean "within the realm of 
possibility."  Rather, it means that the 
weight of the medical evidence both for 
and against causation is so evenly 
divided that it is as medically sound to 
find in favor of causation as it is to 
find against causation. 

2. After the requested development is 
completed adjudicated the claim of 
service connection for a left knee 
disability on the merits.  If the claim 
remains denied, furnish the veteran a 
supplemental statement of the case and 
return the case to the Board. 

The veteran has the right to submit additional evidence and 
argument on the matter 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. 2007).  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs