Citation Nr: 1312494 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-17 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a right knee disorder? 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a low back disorder, to include as secondary to a right knee disorder. 4. Entitlement to service connection for a right hip disorder, to include as secondary to a right knee disorder. 5. Entitlement to service connection for a right thigh disorder (claimed as a right leg disorder), to include as secondary to a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The reopened claim of service connection for a right knee disorder and the claims of service connection for a low back disorder, right hip disorder, and right thigh disorder are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an February 1997 rating decision, the RO denied the Veteran's claim of service connection for a right knee disorder; he was notified of this action and apprised of his appellate rights, but did not file a timely appeal. 2. The evidence received since the February 1997 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disorder. CONCLUSION OF LAW New and material evidence has been received since the February 1997 rating decision that is sufficient to reopen the claim of service connection for a right knee disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As will be addressed, the Board has reopened the Veteran's claim of service connection for a right knee disorder. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Initially, the Board observes that the Veteran's claim of service connection for a right knee disorder was previously denied by the RO in a rating decision dated in February 1997. The Veteran was notified of that decision and apprised of his appellate rights; however, he did not submit a Notice of Disagreement or otherwise initiate a timely appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In September 2007, the Veteran petitioned to reopen his claim of service connection for a right knee disorder. However, the rating decision currently on appeal denied reopening the claim because new and material evidence was not submitted. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened, regardless of how the RO ruled on the question of reopening. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. For applications to reopen filed after August 29, 2001, as was the application to reopen the claim in this case, new and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). As noted, the February 1997 rating decision denied the Veteran's claim of service connection for a right knee disorder. In that decision, the RO found that the evidence failed to establish that a current right knee disorder was related to service. The evidence of record at that time included the Veteran's service treatment records and a December 1996 VA examination report. The RO noted that the service treatment records did not show any injury, complaint, or treatment of a right knee disorder during service or immediately following separation therefrom, with the exception of one reported incident when the Veteran fell on both of his knees on the infiltration course during basic training. The RO noted that, following the incident, there were no further complaints reported pertaining to the right knee. The RO also indicated that the December 1996 VA examination report included the Veteran's reports of injuring his right knee on more than one occasion during service. During the examination, the Veteran reported accidentally stepping in a hole and falling while carrying a full load of field gear during training. He reported twisting and injuring his right knee in the fall. He related that he was treated by a physician at Fort Knox and was provided with a heat pack. He added that, later during service, playing basketball, he accidentally twisted his right knee again. He indicated that an ambulance took him to a hospital and his right knee was braced after a "reduction." He stated that fluid was drained from his knee and that a splint was applied. He indicated that his knee "gradually got better," but the bone felt as if it was "moving" since the second injury. The examiner noted that there was some deformity with posterior subluxation of the tibia on the femur; however, range of motion testing was normal without swelling or tenderness. The examiner also indicated that an x-ray study of the right knee was normal, but that a magnetic resonance imaging (MRI) study showed a complex, non-displaced tear of the posterior horn of the medial meniscus; a thickened anterior cruciate ligament; and mild degenerative arthritis in the medial and patellofemoral compartments. Essentially, in the February 1997 rating decision, the RO determined that there was no evidence of a nexus, or link, between an in-service injury or disease and a current right knee disability. The evidence associated with the claims file subsequent to the February 1997 rating decision includes private treatment records and lay statements submitted by the Veteran in support of his claim. The Board has thoroughly reviewed the evidence associated with the claims file since the February 1997 rating decision and finds that it constitutes new and material evidence that is sufficient to reopen the previously denied claim of service connection for a right knee disorder. In the Veteran's petition to reopen his claim, he stated that he fell on the infiltration course during basic training and tore cartilage in his right knee. He reported that a physician wrapped it and treated the injury with heat therapy. He also indicated that he was treated at the Fort Dix Army Hospital and the Fort Bragg Army Hospital for his right knee injury. In an August 1997 private treatment note, the Veteran reported that he had right knee pain and instability for a couple of months. He attributed his pain to some heavy work that he was performing at his place of employment. He noted that he had treatment of his knee at VA in the past for previous injuries and that a previous MRI showed a posterior horn tear of the medial meniscus and an anterior cruciate ligament injury. In an August 1997 private treatment note, the examining physician noted that he reviewed an x-ray study of the Veteran's right knee which showed some mild degenerative changes throughout the knee. He noted that his impression was that the Veteran had a torn medial meniscus of the right knee with probable early degenerative arthritis and a probable anterior cruciate ligament rupture. A September 1997 private operative report indicates that the Veteran underwent an arthroscopy of the right knee with a partial medial meniscectomy. In a June 2008 Notice of Disagreement, the Veteran asserted that he initially injured his right knee during nighttime exercises at Fort Knox in 1965. He also reported that Army medical personnel drained fluid from his right knee following the injury. In a September 2009 VA Form 9, Appeal to the Board, the Veteran reported catching his foot in a hole in the ground on a night training course in 1965 at Fort Knox. He stated that, ten weeks later, during advanced individual training (AIT), a physician at Fort Dix told him that his right knee was okay to return to duty. He reported playing basketball days later when his right knee "turned" 360 degrees with his right foot facing backwards. He stated that an ambulance was called and that he was taken to the hospital where fluids were drawn off of his right knee. The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and the phrase "raises a reasonable possibility of substantiating the claim" is "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the Veteran's statements and the private treatment records suggest that the Veteran may have a right knee disability that is related to service. There is enough evidence that would trigger VA's duty to provide an examination for the claim. Id. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's claim of service connection for a right knee disorder. ORDER As new and material evidence has been submitted to reopen the claim of service connection for a right knee disorder, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, there is evidence of the claimed right knee, low back, right hip, and right thigh disorders that may be associated with an in-service event, injury, or disease. As discussed, the Veteran reported that he fell on the infiltration course during basic training in approximately March 1965 and tore cartilage in his right knee. Additionally, in a September 2009 VA Form 9, Appeal to the Board, the Veteran stated that, ten weeks after basic training, during AIT, a physician at Fort Dix told him that his right knee was okay to return to duty. He reported playing basketball days later when his right knee "turned" 360 degrees with his right foot facing backwards. He stated that an ambulance was called and that he was taken to the hospital where fluids were drawn off of his right knee. In a June 2008 statement, the Veteran asserted that his current low back disorder was also related to his fall on the infiltration course during basic training at Fort Knox. Alternatively, in a September 2009 statement on his VA Form 9, Appeal to the Board, the Veteran reported that his lower back "went numb" during service at Fort Bragg in June 1966. In a June 2008 statement, the Veteran reported having right hip and thigh conditions that developed secondary to his right knee and back injuries. A June 1965 service treatment references the Veteran's fall during basic training, the authoring medical officer noted that the Veteran fell on both of his knees and complained only of left knee pain and swelling. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). For these reasons, the Board finds that VA examinations and medical opinions are necessary for determining the nature and etiology of any current right knee, low back, right hip, and right thigh disorders. Accordingly, these matters are REMANDED for the following action: 1. The RO should contact the National Personnel Records Center (NPRC) and any appropriate government agency to obtain copies of any service treatment records that have not been associated with the record, to specifically include, but not limited to, any treatment for right knee, low back, right hip, or right thigh disorder at the Fort Knox or Fort Bragg Army Hospitals. 2. The RO should take appropriate action to contact the Veteran in order to have him identify any VA, non-VA, or other medical treatment that is not evidenced by the current record, to specifically include, but not limited to, any VA treatment records and any private treatment records pertaining to treatment for his right knee, low back, right hip, and right thigh disorders. The RO must provide the Veteran with authorization forms for the release of any identified outstanding private treatment records. The RO then should obtain copies of all records from any identified health care provider and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records. 3. The RO then should have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed right knee, low back, right hip, and right thigh disorders. Any indicated studies, tests, and evaluations should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and his lay statements. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. Following a review of the entire claims folder, the examiner should identify all current right knee, low back, right hip, and right thigh disorders. For each diagnosis identified, the examiner should opine as to whether it is at least as likely as not that any current right knee or back disability had its clinical onset in service or otherwise is due to an injury or other event or incident of the Veteran's period of active service, including a fall during basic training at Fort Knox. In addition, with respect to the claimed right hip and right thigh disorders, the examiner should opine as to whether it is at least as likely as not that any current right hip or right thigh disability was caused or aggravated by the right knee and/or low back disability. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing all indicated development, the RO should readjudicate the claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has 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. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs