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