Citation Nr: 0812617 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-04 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right knee disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left knee disability. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right ankle disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The veteran served on active duty from September 1961 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) from an August 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been received to reopen claims of entitlement to service connection for right knee disability, left knee disability, right ankle disability, residuals of left toe injury, and residuals of right sternoclavicular separation. A notice of disagreement was filed in September 2005 with regard to the denial of all issues, and a statement of the case was issued in December 2005. A substantive appeal was received in January 2006 with regard to the issues of whether new and material evidence had been received to reopen claims of entitlement to service connection for right knee disability, left knee disability, and right ankle disability. The veteran requested a Board hearing; however, withdrew such request in March 2006. The issues of entitlement to service connection for right knee disability, for left knee disability, and for right ankle disability are being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if any further action is required on his part. FINDINGS OF FACT 1. In a February 2003 RO decision, entitlement to service connection for left knee disability, right knee disability, and right ankle disability was denied; the veteran did not file a notice of disagreement. 2. In April 2005, the veteran filed a claim to reopen entitlement to service connection for left knee disability, right knee disability, and right ankle disability. 3. Certain evidence received since the RO's February 2003 decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claims, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The February 2003 RO decision is final. 38 U.S.C.A. § 7105 (West 2002). 2. New and material evidence has been received since the February 2003 denial, and the claims of service connection for right knee disability, for left knee disability, and for right ankle disability are reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New & Material Generally, an unappealed RO denial is final under 38 U.S.C.A. § 7105(c), and the claim may only be reopened through the receipt of "new and material" evidence. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). The veteran's request to reopen his claims of service connection for left knee disability, right knee disability, and right ankle disability was received in April 2005, and the regulation applicable to his appeal provides that new and 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) (2007). 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. Id. 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). In November 1966, the veteran filed a formal claim of service connection for "injured right knee" sustained in September 1966 while playing football. On file at that time were the veteran's service medical records which reflected that in August 1966, he injured his right knee. The assessment was medial meniscus damage. The veteran was scheduled for a VA examination; however, failed to report. On that basis, the veteran's claim of service connection was denied in December 1966; the veteran did not file a notice of disagreement. Thus, the RO's decision is final. 38 U.S.C.A. § 7105(c). In January 1988, the veteran filed a formal claim of service connection for, in pertinent part, residuals of right knee injury. A March 1988 rating determination noted the August 1966 injury, but determined such injury was acute and transitory. Although claims had not been filed, the RO also considered whether service connection was warranted for residuals of right ankle injury. Service medical records reflect that the veteran sustained a right ankle sprain in May 1963. The RO determined that such injury was acute and transitory and denied service connection. The March 1988 rating decision was issued to the veteran in April 1988. The veteran did not file a notice of disagreement; thus, the RO's decision is final. 38 U.S.C.A. § 7105(c). In August 1998, the veteran filed a formal claim of service connection for right knee injury, stating that such injury occurred in 1962. An August 1998 VA x-ray examination was conducted to rule out a fracture, and no recent fracture or dislocation was identifiable, and only a minor abnormality was detected. A January 1999 rating decision denied entitlement to service connection for residuals of right knee injury on the basis that there was no objective medical evidence linking any current disability to his injury in service. Such decision was issued to the veteran in February 1999; he did not file a notice of disagreement. Thus, the RO's decision is final. 38 U.S.C.A. § 7105(c). In August 2002, the veteran filed an informal claim of service connection for, in pertinent part, left knee disability, right knee disability, and right ankle disability. Service medical records reflect that in July 1966, the veteran sustained a superficial laceration to the left patellar area due to a baseball cleat. The laceration was cleansed and bandaged. A February 2003 rating decision denied entitlement to service connection for left knee disability on the basis of no chronic disability, and determined that new and material evidence had not been received to reopen claims of service connection for right knee disability and right ankle disability. The rating decision was issued to the veteran in February 2003, and he did not file a notice of disagreement. Thus, the RO's decision is final. 38 U.S.C.A. § 7105(c). In April 2005, the veteran filed an informal claim of service connection for left knee disability, right knee disability, and right ankle disability. VA outpatient treatment records were associated with the claims file which reflects complaints of right ankle pain in September 2003. The examiner diagnosed mild pes planus bilaterally, and tenderness over the posterior tibial tendon near the insertion. In July 2005, the veteran underwent a VA examination. The veteran reported unemployment as a result of his knees. He reported that in the 1960s, he injured his knees multiple times while playing sports such as baseball and football. He reported fracturing both knee caps. He stated that his right kneecap was fractured playing sports and his left kneecap was fractured when he fell out of a truck and landed on his knees on the pavement. He reported that he was casted and ended up on physical therapy after cast removal. He then went back to playing sports. He reported pain and swelling in his knees and ankles. With regard to the ankle, he reported that he had torn ligaments in the left ankle while playing football in the 1960s and reported surgical repair of the ligament and casting. He reported surgical repair of the right ankle during the same time period and reported chronic ankle pain. On physical examination of the knees, there was tenderness to palpation along the medial joint line and just above. Flexion was to 115 degrees in the right knee, and to 120 degrees in the left knee. On examination of the right ankle, plantar flexion was to 40 degrees, and dorsiflexion was to 10 degrees. The examiner diagnosed degenerative joint disease bilateral knees, mild; but did not render a diagnosis related to the ankles. VA outpatient treatment records reflect that in August 2005, the veteran complained of bilateral knee pain, and reported that the left knee was worse with pain and swelling. He reported a twisting knee injury in May 2005. The examiner diagnosed mild osteoarthritis of the left knee, and that knee has q/o ACL tear and meniscal tear and symptoms of chondromalacie patellae. Right knee and right ankle At the time of issuance of the February 2003 rating determination, the evidence of record consisted of service medical records reflecting injury to the right knee and right ankle, and an August 1998 x-ray examination report pertaining to the knees. The Board has determined that the objective findings in the July 2005 VA examination report pertaining to the knee and ankle, and VA outpatient treatment records pertaining to the knee and ankle, constitute new and material evidence. Such evidence is new as it establishes that the veteran may have current right knee and right ankle disabilities. The Board has determined that such evidence is material and relates to an unestablished fact necessary to substantiate the merits of the claims, and raises a reasonable possibility of substantiating the claims of service connection. It appears that these claims have been denied on the basis of no current chronic disability, but the newly received medical evidence does suggest current disability. Therefore, the claims of service connection for right knee and right ankle disabilities are reopened. 38 U.S.C.A. § 5108. The Board's decision is strictly limited to the reopening of the claims and does not address the merits of the underlying service connection claims. Left knee It also appears that the prior final denial of left knee disability was based on a finding of no evidence of current disability. However, the newly received evidence includes a diagnosis of degenerative joint disease. This claim is also reopened. Veterans Claims Assistance Act of 2000 There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations at this time. . See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). It is anticipated that any VCAA deficiencies will be remedied by the RO while the case is in remand status. ORDER New and material evidence has been received to reopen the claims of service connection for right knee disability, for left knee disability, and for right ankle disability. To this extent, the appeal is granted, subject to the directions set forth in the following remand section of this decision. REMAND In view of the reopening of the claims, additional action is necessary at the RO level to develop the evidence and to allow for a merits analysis of the underlying service connection claims by the RO. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be scheduled for a VA examination to ascertain the nature and etiology of the claimed right knee, left knee, and right ankle disabilities. It is imperative that the claims folder, to include all service medical records, be reviewed in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. After reviewing the claims file and examining the veteran, the examiner should offer an opinion as to the following: (a) Is any current right knee disability at least as likely as not (a 50% or higher degree of probability) related to his active duty service or any incident therein; (b) Is any current left knee disability at least as likely as not (a 50% or higher degree of probability) related to his active duty service or any incident therein; (c) Is any current right ankle disability at least as likely as not (a 50% or higher degree of probability) related to his active duty service or any incident therein. All opinions and conclusions expressed must be supported by a complete rationale in a report. 3. After completion of the above, the RO should readjudicate the issues under a merits analysis. If either claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran and his representative have 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. 2007). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs