Citation Nr: 1314856 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-45 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for low back disability, and if so, whether the reopened claim should be granted. 2. Whether new and material evidence has been received to reopen a claim for service connection for a cervical spine disability, and if so, whether the reopened claim should be granted. 3. Whether new and material evidence has been received to reopen a claim for service connection for a left knee disability, and if so, whether the reopened claim should be granted. 4. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to December 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from June 2009 and February 2010 rating decisions rendered by the San Juan, Puerto Rico Regional Office (RO) of the Department of Veterans Affairs (VA). The claim for service connection for a right knee disability, along with the Veteran's reopened claims, is addressed in the REMAND that follows the ORDER section of this decision. As to claims 1, 2 and 3, the Board notes that, regardless of whether the RO has determined that new and material evidence has been submitted to reopen a claim, the Board must determine on its own whether new and material evidence has been submitted to reopen the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board further notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. A November 1976 rating decision denied service connection for a left knee disability. The Veteran did not appeal. 2. The evidence associated with the claims file subsequent to the November 1976 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. 3. A January 1979 rating decision denied service connection for back conditions. The Veteran did not appeal. 4. The evidence associated with the claims file subsequent to the January 1979 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for cervical and lumbar spine disability. CONCLUSIONS OF LAW 1. The November 1976 rating decision is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1976). 2. 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 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The January 1979 rating decision is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for disabilities of the spine, including cervical and lumbosacral. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Legal Criteria Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). B. Analysis The RO denied the Veteran's claim for service connection for a left knee disability in an unappealed rating decision in November 1976, and his claim for service connection for a back condition in an unappealed rating decision in January 1979. The RO found in both decisions that none of the evidence of record showed that the Veteran had a current left knee disability or a current back condition. Evidence of record at the time of the November 1976 rating action consisted of service treatment records (STRs), which showed that the Veteran bumped and injured his knee in May 1975, but X-rays were negative, there were no findings of chronic left knee disability and the Veteran did not report for VA examination. None of the medical evidence of record related a current left knee disability to the Veteran's military service or a service-connected disability. Evidence of record at the time of the January 1979 rating action consisted of STRs showing multiple complaints of back pain and a January 1979 VA examination report showing no back condition was found. The rating decision indicated that there was no current back condition. Evidence received since the two final rating decisions includes a report of a VA joints examination in November 2000 for pension, which noted diagnoses of degenerative joint disease (DJD) of the knees and pelvis; chondrocalcinosis of the knees; and, sacroiliitis (a disease affecting the lower spine). Also added to the record is a May 2009 report of VA examination containing the VA examiner's opinion that current cervical degenerative disc disease, low back disability and bilateral knee disabilities are not etiologically related to injuries in service. Also of record is a February 2010 report of medical examination from N.A.O., M.D., with an X-ray report of the cervical and lumbar spines and the knees. Dr. O. examined the Veteran and noted his reported history of falling in an obstacle course in basic training and two subsequent falls in service. Dr. O. indicated that, "After evaluation of record it is more probable than not that his back, neck and bilateral knee problem are service-connected secondary to his incidents while at service..." A friend of the Veteran who served with him in Germany in 1975 submitted a sworn affidavit in April 2009 indicating that he was with the Veteran when he injured his back and knees on two occasions in Germany. The Board further finds that the medical records noting diagnoses concerning the knees and spine are new and material evidence. Specifically, they had not been submitted before, and they relate directly to the reason the claims were previously denied. Furthermore, the opinion of Dr. O., which relates the Veteran's current low back, neck and left knee disabilities to service, is new and material. In this regard the Board notes that it is not cumulative or redundant of the evidence previously of record. Moreover, the medical evidence is sufficient to raise a reasonable possibility of substantiating the claims. Accordingly, reopening of the claims for entitlement to service connection for low back, cervical spine and left knee disabilities is in order. ORDER New and material evidence has received to reopen the claims of entitlement to service connection for lumbosacral and cervical spine disability, as well as left knee disability, and to that extent, the claims are granted. REMAND With respect to the reopened claims, none of the medical opinions of record are adequate for adjudication purposes. In this regard, the Board notes that the VA examination opinion was rendered without the benefit of review of the additional evidence including the February 2010 opinion from Dr. O. and the lay statement from the Veteran's friend who served with him in Germany and confirms his injuries to the back, neck and knees. The Board also notes that the claim for right knee disability is inextricably intertwined with the left knee disability. Pursuant to 38 U.S.C.A. § 5103A(d) (West 2002), VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. See also 38 C.F.R. § 3.159(c)(4) (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, in view of the above-discussed evidence, the Board finds that an examination would be helpful in resolving the claims for service connection. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Schedule the Veteran for a VA examination with an examiner of sufficient expertise. The claims files must be made available to and reviewed by the examiner, and a full history must be obtained by the Veteran. Based on review of the pertinent medical history, examination of the Veteran, and with consideration of sound medical principles and other evidence of record, the examiner is asked to provide an opinion with respect to each low back disability, cervical spine disability, and knee disability present during the period of this claim as to whether it is at least as likely as not that the disability is related to the Veteran's service. Review of the entire file is required; however, attention is invited to the Veteran's credible statements regarding the type of symptoms he experienced in service, the credible lay statement offered by his fellow service member, and the February 2010 opinion by Dr. N. O. The examiner must explain the reasons for all opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Then, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matters that 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). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs