Citation Nr: 1312229 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 09-45 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee injury. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which declined to reopen the Veteran's previously denied claim of entitlement to service connection for a left knee injury. In June 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in November 2009. In June 2011 and June 2012, the Board remanded the Veteran's petition to reopen his previously denied claim of entitlement to service connection for a left knee injury to the Appeals Management Center (AMC) for further evidentiary development, including attempting to obtain treatment records from VA healthcare facilities in San Diego, California, Las Vegas, Nevada, and Rome, Georgia. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the claims file reflects that the AMC obtained treatment records from the Rome VA Community Based Outpatient Clinic (CBOC) and attempted to obtain any treatment records from the San Diego and Las Vegas VA Medical Centers (VAMCs). However, July and August 2011 replies from the San Diego and Las Vegas VAMCs indicated that they did not have any treatment records for the Veteran. The Veteran was informed of the negative replies in a November 2011 Formal Finding. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. To establish jurisdiction over the issue of entitlement to service connection for a left knee disability, the Board must first consider whether new and material evidence has been received to reopen the claim. See 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012). The Board must proceed in this fashion regardless of the RO's actions. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92. As discussed fully under the analysis section, new and material evidence has been received sufficient to reopen the claim for service connection for a left knee injury. The issue of entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. In an unappealed rating decision dated in December 2003, the Veteran's petition to reopen his previously denied claim of entitlement to service connection for a left knee injury was denied on the basis that he had not submitted new and material evidence that his preexisting left knee injury was aggravated in service. 2. Evidence submitted subsequent to the RO's December 2003 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee injury. CONCLUSIONS OF LAW 1. The December 2003 decision declining to reopen a previously denied claim for service connection for a left knee injury is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2012). 2. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a left knee injury has been submitted. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's application to reopen his previously denied claim for service connection for a left knee injury, this application is being granted, as is discussed in detail below. As such, the Board finds that any error related to the VCAA with regard to the application to reopen is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The initial issue before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claim of entitlement to service connection for a left knee injury. After a review of the evidence of record, the Board finds that new and material evidence has been submitted with regard to this claim. Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. As noted above, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett, supra. If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. See Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). New evidence means 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. See 38 C.F.R. § 3.156(a) (2012). According to the United States Court of Appeals for Veterans Claims (Court), the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). "[T]he determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156(a), does not create a third element in the reopening process but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material." See Shade v. Shinseki, 24 Vet. App. 110 (2010) (noting that 38 U.S.C.A. § 5108 requires only new and material evidence to reopen). The Court further explained in Shade that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element. The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans, supra at 283; see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant the claim). The Veteran previously sought service connection for a left knee injury. He filed his original claim of entitlement to service connection in February 1975. An April 1975 rating decision from the VA RO in Atlanta, Georgia denied the Veteran's left knee claim on the basis that the evidence did not establish that the Veteran's preexisting left knee injury had been aggravated by service. The Veteran sought to reopen his service connection claim in October 1976, October 2002, April 2003, and October 2003. June 1977, March 2003, August 2003, and December 2003 rating decisions from the San Diego and Reno ROs declined to reopen the Veteran's previously denied service connection claim. At the time of the most recent denial of reopening in December 2003, statements from the Veteran, service treatment records, and private treatment records were considered. The Veteran did not appeal this rating decision, nor did he submit any new and material evidence within a year of the December 2003 rating decision. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2011). The December 2003 RO decision is the last final denial of this claim. The new evidence submitted since the December 2003 denial consists of additional statements from the Veteran and VA treatment records from Atlanta VAMC and Rome CBOC. VA treatment records from the Georgia CBOC, which received as a part of the most recent Remand, suggest that the Veteran's left knee injury may have been aggravated by service. Notably, an August 2010 treatment record notes that the Veteran reinjured his knee while in the military. That record also cited to a contemporaneous X-ray that described a post-traumatic deformity of the knee. Additionally, March 2008 and December 2010 treatment records indicate that the Veteran's current left knee deformity is the result of previous injuries. As there was no deformity noted on entrance to active duty, this suggests that any knee disorder that may have preexisted was worsened during, or at least after, military service. These treatment records must be presumed credible at this juncture. See Justus, supra. Accordingly, the Board concludes that these treatment records satisfy the low threshold requirement for new and material evidence. See Shade, supra. The claim for service connection for a left knee injury is reopened. ORDER As new and material evidence has been received with regard to the previously denied claim of entitlement to service connection for a left knee injury, to this extent only, the appeal is granted. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the Veteran's reopened claim of entitlement to service connection for a left knee disability. The Veteran claims that he has a current left knee disability that was aggravated by his military service. Specifically, he claims that he injured his left leg/knee prior to service and that the rigors of basic training aggravated his preexisting condition. Therefore, he believes service connection is warranted. The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is: (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Veteran service treatment records show that he was seen for complaints of left knee soreness with exercise in October 1967 and that his November 1967 Medical Board proceedings showed an asymptomatic residual varus deformity of the left knee which was the result of an old fracture. His entrance examination report was negative for any left knee or lower extremity abnormalities. Additionally, VA and private post-service treatment records show that the Veteran has been seen for left knee pain and diagnosed with various left knee disorders, including arthritis, joint effusion, osteochondromatosis, and left knee deformity. In light of the evidence showing current complaints of left knee pain, the in-service complaints of left knee pain and possibility of a preexisting left knee disability on entrance to active duty, and the Veteran's contention that his current left knee problems are the result of his military service, the Board finds that an examination and medical nexus opinion are necessary in order to properly resolve the claim of entitlement to service connection for a left knee disability. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); see also McLendon, supra. As Court explained in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), the Board may consider only independent medical evidence to support its findings. The Court went on to say that, if the medical evidence of record is insufficient, the Board is free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See Colvin at 175. For the reasons described above, the Veteran's reopened claim of entitlement to service connection for a left knee disability must be remanded for a VA examination and opinion. Additionally, as the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Additionally, December 2010 VA treatment records indicate that the Veteran was planning to have left knee replacement surgery in May 2011. On remand, he should be invited to submit any private treatment records relating to that surgery. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the Atlanta VA Medical Center, Rome, Georgia VA CBOC, and any other VA facility identified by the Veteran, should be obtained and added to the claims folder. 2. Contact the Veteran and ask him to provide a signed release of information for any treatment records relating to his left knee disability, specifically any left knee replacement surgery. If the Veteran returns completed release(s) of information, the AMC should obtain these records and associate them with the claims file. 3. The Veteran should be afforded an examination with an appropriate examiner in order to determine the nature and etiology of his left knee disability. All indicated studies should be performed. The claims folder should be provided to the examiners for review of pertinent documents therein, to include the documents associated with the Veteran's Medical Board proceedings. The examination report should reflect that such a review was conducted. The examiner must state whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran's claimed left knee disability existed upon entrance to active duty service. The examiner should specifically comment on the Veteran's history of a left distal femur fracture prior to service and the normal entrance examination. If the examiner determines that such evidence exists, s/he must state whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that the Veteran's preexisting left knee disability either did not undergo an increase during service, and that any increase in disability was not due to the natural progression of the condition. If there is insufficient evidence showing that a left knee disorder preexisted service (i.e., a lack of clear and unmistakable evidence), the examiner must determine whether it is as likely as not (a 50 percent probability or greater) that the Veteran currently has a left knee disability that had its onset in service or is otherwise etiologically related to his active service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the reopened claim of entitlement to service connection for a left knee disability should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). 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 2002 & Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs