Citation Nr: 1301138 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-36 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a left knee disability, including secondary to service-connected right knee disability. 2. Entitlement to service connection for a low back disability, including secondary to service-connected right knee disability. 3. Entitlement to service connection for a left hip/buttock disability, including secondary to service-connected right knee disability. 4. Entitlement to service connection for a left ankle disability, including secondary to service-connected right knee disability. 5. Entitlement to an increased rating for a right knee disability, currently rated 30 percent. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from April 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the benefits sought. The Veteran was scheduled for a videoconference hearing before a Veterans Law Judge in August 2012. He failed to report. The reopened claim of entitlement to service connection for a left knee disability is REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. On September 12, 2011, prior to the promulgation of a decision in the appeal, the RO received a follow-up VA Form 9 from the Veteran withdrawing his appeal on the issues of entitlement to an increased rating for a right knee disability, currently rated 30 percent disabling, entitlement to service connection for a low back disability, entitlement to service connection for a left hip/buttock disability, and entitlement to service connection for a left ankle disability. 2. The January 1987 Board decision that denied service connection for a left knee disorder, including secondary to a service-connected right knee disability, is final. 38 U.S.C.A. § 7104 (West 2002). 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder, including secondary to a service-connected right knee disability. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to an increased rating for a right knee disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for a low back disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 3. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for a left hip/buttock disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 4. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for a left ankle disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 5. The January 1987 Board decision that denied service connection for a left knee disability, including secondary to service-connected right knee disability, is final. 38 U.S.C.A. § 7104 (West 2002). 6. New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by the authorized representative. 38 C.F.R. § 20.204 (2012). The appellant submitted a second signed VA Form 9 that was received by the RO on September 12, 2011, in response to an August 2011 supplemental statement of the case that specifically stated that he only wanted to continue his appeal on the issue pertaining to his left knee. The Board finds that communication from the Veteran, in writing, withdrew his appeal on the issues of entitlement to an increased rating for a right knee disability, entitlement to service connection for a low back disability, entitlement to service connection for a left hip/buttock disability, and entitlement to service connection for a left ankle disability. There remain no allegations of errors of fact or law for appellate consideration on these matters. Accordingly, the Board does not have jurisdiction to review the appeal on those issues and they are dismissed. New and Material Evidence Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in July 2010 and November 2007 of the elements needed to support his claim, including the prior basis for the denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls upon party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the August 2011supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). A decision of the Board is final unless appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C.A. § 7104 (West 2002). If a claim has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decisionmakers. 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) (2012). VA must review all of the evidence submitted since the last final decision in order to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). For the claim to be reopened, there need not be new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO denied the Veteran's initial claim for service connection for a left knee disability in a December 1975 rating decision. The evidence of record at the time of the decision included the Veteran's service records, which did not document any complaints of a left knee injury in service. A VA examination report dated in February 1975 noted that the left knee was strong and stable and an X-ray was negative. In August 1975, the Veteran experienced an on-the-job injury and sustained a dislocated left patella and torn left medial meniscus. At the time of the injury, he alleged that the left knee gave way due to weight being born mostly on the left leg due to his service-connected right knee disability. Based on the evidence, the RO concluded that the Veteran did not have a left knee disability as a result of his military service and the current disability was not proximately due to his service-connected right knee disability. Additionally, there was no indication that arthritis was manifest to a compensable degree within one year of discharge because the x-ray in February 1975 was negative. Notice of the determination and his appellate rights were issued and a letter from the Veteran's congressman was accepted as a timely notice of disagreement. He was sent a statement of the case in February 1976. The Veteran did not file a substantive appeal and the decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2012). In April 1984, the Veteran requested that his claim be reopened. The additional evidence associated with the file included private medical records dated in June and July 1975. The Veteran was seen on June 23, 1975, for complaints of a left knee injury two days prior when he tripped and twisted the left knee while working on a farm. Subsequent entries indicate that he continued to have difficulty with the knee with patella displacement. In July 1975, he underwent surgery on the patella tendon with repair of a meniscus tear. In an August 1975 examination report, the Veteran gave a history of giving way of the left knee due to weight being born on the service-connected right knee. Upon VA examination in June 1984, no causal connection between the service-connected right knee and subsequent left knee injury were posited and the RO denied the claim in a June 1984 rating decision. The Veteran appealed the decision to the Board. A January 1987 Board decision denied service connection for a left knee disability, including secondary to the service-connected right knee disorder. The Board considered all the evidence of record, and concluded that the report of the initial injury in June 1975 was most probative and involved a tripping injury, not a giving way injury as later alleged by the Veteran. The Veteran was informed of the decision and he did not appeal it. Therefore, it became final. 38 U.S.C.A. § 7104 (West 2002). The Veteran again sought to reopen his claim in June 2007. The additional evidence received includes an August 2011 medical record from a private physician with an opinion that both of the Veteran's knees involved "service-related injuries." The Board finds that additional evidence is new, in that it was not previously of record. The Board also finds that it is material as it relates to a prior basis for denial of the claim in asserting that the Veteran has a left knee disability that was either initially manifest in service or was due to the service-connected right knee disability. Solely for the purpose of determining whether to reopen the claim, the new evidence is presumed credible. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thus, the Board finds that new and material evidence has been received, and the claim is reopened. To that extent only, the claim is allowed. ORDER New and material evidence has been received to reopen a claim for service connection for a left knee disability. To that extent only the appeal is granted. The appeal of the issue of entitlement service connection for a low back disability is dismissed. The appeal of the issue of entitlement service connection for a left hip/buttock disability is dismissed. The appeal of the issue of entitlement service connection for a left ankle disability is dismissed. The appeal of the issue of entitlement to an increased rating for a right knee disability is dismissed. REMAND The Veteran's claim for service connection for a left knee disorder, including secondary to service-connected right knee disability, has been reopened. A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488 (1997). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012). A disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, and any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310 (effective October 10, 2006). The Veteran has established service connection for a right knee disability and he asserts that his left knee disability is secondary to his right knee disability. In conjunction with his current claim, he was afforded a VA examination in June 2010. The examiner concluded that it was less likely that the Veteran's left knee disability was related to his right knee disability. However, the examiner did not comment on whether the Veteran's service-connected right knee disability aggravated the left knee disability. Consequently, the Board finds that the medical evidence is not sufficient upon which to decide the claim. Therefore, the Board concludes that another VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is advised that failure to report for a VA examination, without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2012). Upon remand, ongoing VA medical records and any additional evidence to support the claim should be obtained. VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request the names and addresses of all medical care providers who have treated the Veteran for a left knee disability since August 2011. After securing any necessary release, attempt to obtain records that are not already in the claims file. The Veteran and his representative should be notified of any unsuccessful attempt to obtain any identified records. 2. Obtain the Veteran's VA medical records dated since March 2010. 3. Thereafter, schedule the Veteran for a VA joints examination. The examiner must review the claims file and must note that review in the report. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records and a full clinical evaluation, the examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is proximately due to the service-connected right knee disability? (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's left knee disability is aggravated beyond the normal progress of the disorder by the service-connected right knee disability? If aggravation is found, the examiner must address the baseline level of disability before it was aggravated by any service-connected disability. 4. Then readjudicate the claim for service connection for a left knee disability. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs