Citation Nr: 1319240 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 11-08 794A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a right knee disability has been received. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from April 1956 to April 1960. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2010 rating decision in which the RO denied the Veteran's petition to reopen the claim for service connection for a right knee disability. In July 2010, the Veteran filed a notice of disagreement. A statement of the case (SOC) was issued in April 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2011. In May 2013, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is of record. Following the Board hearing, also in May 2013, the undersigned advanced this appeal on the Board's docket on the record at the Board hearing in May 2013, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). As regards to characterization of the appeal, although the RO reopened the Veteran's claim and decided it on the merits in the April 2011 SOC, it is noted that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen a claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable disposition on the Veteran's request to reopen-the Board has characterized the appeal as encompassing both matters set forth on the title page. In so doing, the Board has considered the recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In that decision, the Federal Circuit held that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury. Rather, the two claims must be considered independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In this case, the Veteran was previously denied service connection for a right knee disability under the same general description based on the same injury in service. As such, the Board finds, therefore, that the Veteran's current claim for service connection for is not a "new" claim, and that new and material evidence is required in order for the Board to consider the substantive merits of the claim for service connection. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's decision reopening the claim for service connection for a right knee disability is set forth below. The claim for service connection, on the merits, is addressed in the remand following the order. This matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. In a December 2007 decision, the Board denied a claim for service connection for a right knee disability. 3. Evidence associated with the claims file since the December 2007 denial of the claim for service connection for a right knee disability includes new evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2007 decision in which the Board denied service connection for a right knee disability is final. 38 U.S.C.A. § 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 20.1100 (2012). 2. As pertinent evidence received since the December 2007 denial is new and material, the criteria for reopening the claim for service connection for a right knee disability are met. 38 U.S.C.A. §§ 5108, 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the Veteran's request to reopen the claim for service connection for a right knee disability, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal has been accomplished. II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). The Veteran's original claim for service connection for a right knee disability was denied by the RO in a March 2006 rating decision. The Veteran appealed this determination to the Board and in a December 2007 decision, the Board upheld the RO's denial. The Board found that Veteran's right knee disability was not incurred or aggravated in service, and the service incurrence of right knee arthritis could not be presumed. As the Chairman did not order reconsideration of the Board's decision, and no other exception to finality is applicable, the Board's December 2007 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In this case, the Veteran sought to reopen his claim for service connection in July 2009. For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). At the time of the previous Board denial, the evidence of record consisted of the Veteran's service treatment records, VA treatment records, a July 2006 VA examination report, lay statements from the Veteran's friends, and October 2007 Board hearing testimony. Service treatment records show that the Veteran injured his right knee while playing basketball in November 1959. The lay statements indicate that the Veteran had never had any other injury to his right knee and that he walked with a slight limp after service. The VA examiner determined that the Veteran's current right knee disability was not related to the injury in service. However, during the Board hearing, the Veteran testified that his right knee pain had been ongoing since the injury in service. Among the pertinent evidence added to the claims file since the December 2007 Board decision are additional VA treatment records, private treatment records, November 2009 and May 2011 private opinions from N.W., M.D., a June 2010 VA examination report and the Veteran's statements and May 2013 Board hearing testimony, and. In his statements of record and hearing testimony, the Veteran reiterated that his current knee disability was due to the injury he had in service and reported continuing symptomatology since service. Although the June 2010 VA examination determined that the Veteran's current right knee disability was not related to service (as discussed in the remand, below), the May 2011 private opinion by Dr. W indicates that the in-service right knee injury could be a contributing factor to developing the current right knee degenerative arthritis. The Board finds that the above-described evidence-in particular, the May 2011private opinion-provides a basis for reopening the claim for service connection for a right knee disability. The Board finds that the evidence is "new" in that it was not before the Board at the time of the December 2007 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it goes to the question of whether the Veteran has a current right knee disability that may be related to service. In this regard, in the May 2011 private opinion, Dr. E.W. stated that the injury could be a contributing factor the Veteran's current right knee disability. This evidence, while certainly not conclusive, relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability (i.e., a current disability related to military service). Thus, when considered in light of the Veteran's continued assertions of ongoing symptomatology since service, and presumed credible, the private medical opinion also raises a reasonable possibility of substantiating the claim. See, e.g., Shade v. Shinseki, 24 Vet. App. 110 (2010). Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a right knee disability are met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence to reopen the claim for service connection for a right knee disability has been received, to this limited extent, the appeal is granted. REMAND As discussed above, the Board is reopening the Veteran's claims for service connection for a right knee disability; however, a review of the record reflects that additional development of the reopened claim, on the merits, is warranted. The Veteran currently asserts that his right knee disability is due to an injury he suffered in service, which is documented in the Veteran's service treatment records. As noted above, the Veteran was afforded a VA examination with opinion in June 2010. The examiner opined that the Veteran's right knee disability was less likely than not related to service. The examiner rationalized that there was only one isolated incident in service and separation examination was normal. He also indicated that the Veteran's work activities after leaving the military involved extensive standing. However, the examiner failed to address the Veteran's lay assertions of continuing symptomatology since service. Moreover, as discussed above, after the examination, the Veteran submitted the May 2011 private opinion by Dr. W, which indicates that the Veteran's in-service injury could be a contributing factor to the development of the current right knee degenerative arthritis. Unfortunately, as Dr. W did not identify the medical or evidentiary basis for the opinion, this opinion also does not include a rationale. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history). Given the deficiencies discussed above, the Board finds that further medical opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-is needed to resolve the claim for service connection for a right knee disability. The Board also noted that, since the last VA examination in June 2010, the Veteran underwent a right knee replacement in September 2010. As such, the Veteran should be afforded a new examination. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may well result in denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the VA examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. As regards to VA records, the Veteran testified that he received all of his treatment from the VA Medical Center (VAMC) in Columbia, South Carolina, including records from the VA Outpatient Clinic (OPC) in Florence, South Carolina. The claims file currently includes outpatient treatment records dated since September 2011. However, more recent records from these facilities may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the Columbia VAMC, including the OPC in Florence, all outstanding, pertinent records of evaluation and/or treatment of the Veteran since September 2011, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also give the appellant another opportunity to provide information and/or evidence pertinent to the claim for service connection on the merits. The RO's letter to the appellant should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the appellant provide, or provide appropriate authorization for it to obtain, any outstanding, pertinent private medical records. Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Columbia VAMC, including the Florence OPC, all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since September 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for a right knee disability that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified evidence following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented history and assertions. All indicated tests and studies (to include x-rays, if necessary) should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all current right knee disability(ies). Then, with respect to each such diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, and based on consideration of the Veteran's in-service and post-service history and assertions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability had its onset in, or is otherwise medically-related to the Veteran's military service, to include injury/complaints therein. In rendering the requested opinion, the examiner should specifically consider and discuss all pertinent medical and lay evidence, to include service treatment records documenting the right knee injury, the November 2009 and May 2011 private opinions from Dr. W, the Veteran's assertions of continuing symptoms since the in-service injury, and the numerous lay statements from the Veteran's friends. The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for right knee disability. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim for service connection, on the merits, in light of all pertinent evidence (to particularly include all evidence added to the record since the last adjudication of the claim) and legal authority. 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and reflects review of all pertinent evidence of record (including VA medical records in the Virtual VA file) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The RO is reminded that this appeal has been advanced on the Board's docket. ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs