Citation Nr: 1316112 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 12-33 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been received to reopen a previously denied claim for service connection for a right knee injury. REPRESENTATION Veteran represented by: Jeffrey E. Marion, Attorney-At-Law ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied the Veteran's request to reopen a claim for service connection for a right knee injury on the basis the evidence submitted was not new and material. The issue of whether clear and unmistakable error (CUE) was committed in a prior November 2004 rating decision, which denied reopening the Veteran's claim for service connection for right knee injury, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The RO originally denied the Veteran's service connection claim for right knee injury in a January 1984 rating decision. The Veteran did not submit a notice of disagreement nor was new evidence received within one year of the issuance of the rating decision. As a result, the 1984 rating decision became final. 38 U.S.C.A. § 7105. The Veteran filed to reopen his claim for service connection for his right knee injury in 1990 and 2000, but the requests were denied and he did not appeal. The Veteran again sought to reopen his claim in April 2004. The RO afforded him a VA examination in August 2004. On examination, the Veteran reported complaints of pain, stiffness, and swelling of the right knee. The examiner found that the Veteran's range of motion for his right knee was normal. However, the Veteran was also found to have instability, positive right Lachman, and positive right McMurray test. In addition, the examiner cited a November 2003 MRI that found the Veteran to have fluid in the region of the proximal ACL that may represent a partial tear or an interligamented gangrian cyst. While the examiner found no definite meniscus tear was demonstrated, due to fluid surrounding the posterior horn of the lateral meniscus an underlying tear could not be excluded. The MRI showed that there was a mild contour abnormality of the posterior horn of the lateral meniscus as well. Further, the examiner reported that there were signal abnormalities of the lateral femoral condyle and lateral tibial plateau, possibly on the basis of previous trauma and underlying degenerative changes. The Veteran was diagnosed with a partial tear of the anterior cruciate ligament. The examiner concluded that the Veteran's present complaints were at least as likely as not due to the soccer injury the Veteran sustained in service. A November 2004 rating decision continued to deny service connection for right knee injury on the basis that new and material evidence had not been submitted. However, the RO's reasons and basis for its decision stated that the weight of the evidence was not in the Veteran's favor. Specifically, an in-service x-ray from May 1978 and an x-ray from the October 1983 VA examination were negative for any abnormalities. The RO concluded that there were no clinical findings with x-ray evidence to support the opinion of the August 2004 VA examiner; and therefore, service connection remained denied. The Veteran did not file a notice of disagreement nor was new and material evidence received within one year of the issuance of the November 2004 rating decision, which then became final. The Veteran filed to reopen his claim again in August 2009. An August 2010 rating decision continued to deny service connection for the right knee injury on the basis that the evidence submitted by the Veteran was not new and material. A notice of disagreement was received in December 2010, a statement of the case was issued in November 2012, and a substantive appeal was received later that month. The Veteran's representative's April 2013 informal hearing brief raises two issues: first, he argues that the evidence submitted is new and material and satisfies the standard of proof required for an award of benefits; second, he argues that VA's failure to grant service connection, in light of the VA examiner's conclusions and opinions, which established a nexus between the Veteran's current injury and the injury he sustained in service, constitutes "clear and unmistakable error." This statement apparently refers to the November 2004 rating decision by the RO as that is the only final decision which was issued subsequent to the 2004 VA examination. As noted above, the RO has yet to adjudicate the issue of whether CUE exists in its November 2004 decision to deny service connection for the Veteran's claimed right knee injury. As such, the issue is being referred to the RO for appropriate action. Regarding the Veteran's request to reopen his previously denied service-connection claim for a right knee injury, this issue must be remanded because the issue is inextricably intertwined with the CUE issue that cannot be resolved at this time. The question of whether new and material evidence has been received to reopen the Veteran's service-connection claim for a right knee injury is inextricably intertwined with the Veteran's allegations of CUE, which the Board has referred to the RO for initial adjudication in the Introduction above. In this regard, the Board notes that if it ultimately determined that CUE exists in a previous adjudication of this issue, then a claim to reopen that issue would effectively be moot. As such, any decision on the merits to any portion of the remaining claim would be premature. Accordingly, the case is REMANDED for the following action: 1. The RO should adjudicate the Veteran's claim for CUE in the November 2004 rating decision that denied the request to reopen service connection for the Veteran's right knee injury. 2. If the RO determines that the prior rating action does not contain CUE, then the Veteran should be notified of the decision regarding the CUE allegation and provided notice of his appellate rights. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).