Citation Nr: 1326889	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  11-24 046	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for right foot arthritis.

2. Entitlement to service connection for sleep apnea.

3. Whether there is new and material evidence to reopen a previously denied claim for service connection for degenerative joint disease (arthritis) of the knees.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from February 1976 to March 1983.  He also had subsequent service in the reserves.

He appealed to the Board of Veterans' Appeals (Board/BVA) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In this decision the Board is reopening the claim for service connection for a bilateral (right and left) knee disorder because there is the required new and material evidence.  But rather than immediately readjudicating this claim on its underlying merits, meaning on a de novo basis, the Board instead is then remanding this claim and those for service connection for right foot arthritis and sleep apnea to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration.


FINDINGS OF FACT

1. In April 1993, the RO denied the Veteran's original claim of entitlement to service connection for degenerative joint disease of the knees.  

2. He since has submitted additional evidence, however, which relates to an unestablished fact necessary to substantiate this previously denied claim. 



CONCLUSIONS OF LAW

1. The April 1993 RO rating decision denying service connection for degenerative joint disease of the knees is a final and binding determination.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013).

2. But there is new and material evidence since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf.  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so-called "fourth" requirement that VA specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013).


In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen a previously denied and unappealed claim, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence explaining the exact reasons the claim was previously denied so the claimant will have opportunity in response to provide the type of evidence and information needed to overcome the prior shortcomings of his claim.  See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).

Regarding this particular petition at issue to reopen this claim of entitlement to service connection for degenerative joint disease of the knees, the Board is reopening this claim and then remanding, rather than immediately deciding, the underlying claim on the merits for further evidentiary development.  Hence, a conclusive determination as to whether the VCAA's duties to notify and assist were satisfied is not required at this juncture and may be deferred pending completion of the additional claim development on remand and future readjudication of the reopened claim on its underlying merits.

In an earlier April 1993 rating decision, the RO initially considered and denied the Veteran's claim of entitlement to service connection for bilateral degenerative joint disease of the knees.  The stated rationale was that there were no service treatment records (STRs) showing the existence of bilateral knee problems during active duty service.  The RO acknowledged that the service department had been unable to locate any STRs other than limited records from the Veteran's approximate three-year period of reserve duty between 1989 and 1992.  The basis for denial was therefore lack of a causal relationship between post-service bilateral knee disability, and an incident of military service.  He did not file a timely Notice of Disagreement (NOD) with that decision, to initiate an appeal of it, and hence it became final and binding based on the evidence then of record.  See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.

When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

New evidence means existing evidence not previously submitted to agency decisionmakers.  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).  For the purpose of determining 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).  See also Evans v. Brown, 9 Vet. App. 273, 283 (1996).

The basis of denial originally as mentioned was the absence of a causal nexus between this claimed disorder and the Veteran's military service, including any injury during his service.  The element of causation is a prerequisite to establish service connection.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  See also Duenas v. Principi, 18 Vet. App. 512, 516 (2004); Pond v. West, 12 Vet. App. 341, 346 (1999).


Since the original April 1993 unfavorable RO rating decision, several items of evidence have been associated with the record.  In particular, the Veteran has submitted the July 2010 lay witness statement from his spouse attesting as follows:

We were involved in a car wreck in Guam caused by a 
      drunk driver.  A head-on collision that caused [the Veteran] 
      to be pinned in until he forced himself out.  After the wreck 
      he had a popping sound in his knees when he bent them.  
      The popping noise got worse over the years so in 1993 he 
      had surgery on his right knee.  

The statement at issue provides a competent lay witness account of in-service injury, which is presumed credible at the reopening stage (and which indeed the Board would have no reason otherwise to question its veracity), and must be duly considered in regard to the causal nexus determination, notably in the absence of any STRs to otherwise assist in documenting the occurrence of the claimed underlying injury.  See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (where lay evidence provided is credible and competent, the absence of contemporaneous medical documentation does not preclude further evaluation as to the etiology of the claimed disorder).  This proof of in-service injury is therefore directly relevant to establishing a causal nexus between the disability claimed and military service.   The evidence accordingly presents a reasonable possibility of substantiating the Veteran's claim on the issue of causation.  

Accordingly, new and material evidence has been presented to reopen this claim for service connection for bilateral degenerative joint disease of the knees.  But the readjudication of the claim on its underlying merits (meaning on a de novo basis) is being deferred pending completion of the additional development of this claim on remand.



ORDER

Because there is new and material evidence, the claim for service connection for degenerative joint disease of the knees is reopened; the appeal to this extent, and this extent only, is granted.


REMAND

Following the reopening of the claim for service connection for degenerative joint disease (arthritis) of the knees, further development is warranted before readjudicating this claim on its underlying merits.  In particular, a VA Compensation and Pension examination is needed to determine whether there is any current disability referable to the Veteran's knees that is attributable to the automobile accident he reportedly had in service according to the lay witness accounts of him and his spouse.  See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013).  The requested VA examination should also encompass disability involving his right foot, which he alleges arose out of the same underlying injury.

Furthermore, an examination is needed as well concerning the claim for service connection for sleep apnea, as the last VA medical opinion of August 2012 appeared to wholly discount the validity of the numerous lay witness statements of record describing the onset of relevant symptoms in service.  Another examination and opinion must be obtained that properly considers the probative weight of the competent lay evidence.

Moreover, regarding all claims being remanded, the Board acknowledges that the Veteran's complete STRs are unavailable.  Where service records are incomplete, lost or presumed destroyed through no fault of the Veteran, VA has a heightened duty to assist in the development of the case, as well as a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt doctrine.  See Marciniak v. Brown, 10 Vet. App. 198, 200 (1997), citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  See also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006).  As part of this obligation, the Veteran should be informed as to the alternative sources of evidence he can provide to supplement the record, to try and compensate for this missing evidence.  See VA Adjudication Procedure Manual, M21-1R III.iii.2.E.27.6 (Feb. 6, 2012).

Accordingly, his claims are REMANDED for the following additional development and consideration:

1. Send the Veteran a supplemental notice letter advising him that he can submit alternate evidence to support his claims, based upon the list of such alternative documents provided in the VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Section E (Feb. 6, 2012).

2. Schedule the Veteran for a VA compensation examination to determine the etiology of his claimed bilateral degenerative joint disease of the knees, and right foot disability.  The claims folder must be provided to and reviewed by the examiner in conjunction with this requested VA examination.  All indicated tests and studies should be performed, and all findings should be set forth in detail.

The VA examiner is requested to provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran currently manifests bilateral degenerative joint disease of the knees that is directly related or attributable to disease, injury or event during his active military service from February 1976 to March 1983 or, if involving arthritis, initially manifested to the required minimum compensable degree of at least 10-percent disabling within the initial post-service year, so meaning by March 1984.

This determination must be based on consideration of the objective medical evidence of record, as well as the Veteran's lay assertions and the July 2010 lay witness statement of the Veteran's spouse describing a precipitating injury of a motor vehicle accident.  

Please then provide a substantially similar medical nexus opinion regarding the etiology of a right foot condition, in terms of the likelihood (very likely, as likely as not, or unlikely) that the Veteran has a present right foot condition that is etiologically related to military service, or if involving arthritis, had its onset within one-year of service discharge. 

It is most essential the examiner discuss the underlying rationale for all opinions expressed, if necessary citing to specific evidence in the file.  However, if the examiner cannot respond to the inquiries without resorting to mere speculation, he/she must so state but, more importantly, also explain why it is not feasible or possible to provide a responsive medical opinion - such as by indicating whether additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another, the limits of medical knowledge have been exhausted, or whatever may be the case.

3. 
Then schedule the Veteran for another VA compensation examination to determine the etiology of his claimed sleep apnea.  The claims folder must be provided to and reviewed by the examiner in conjunction with this requested VA examination.  All indicated tests and studies should be performed, and all findings should be set forth in detail.

The VA examiner is requested to provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that the Veteran's diagnosed sleep apnea is directly related or attributable to disease, injury or event during his active military service from February 1976 to March 1983.  This determination must be based on consideration of the objective medical evidence of record, as well as the Veteran's lay assertions and the numerous lay witness statements from others describing symptoms contemporaneous with military service.  Please further review and consider the August 2012 VA examiner's medical conclusion on causation, but contrary to statements made in the opinion proffered therein, please note that under applicable law in the adjudication process, the Veteran and others' competent and credible lay statements may suffice as proof of underlying injury even where not otherwise documented in service records. (Thus, contrary to what the August 2012 examiner stated, it would seem possible to render a medical determination on whether the Veteran's condition is service-related when taking into account the persuasive value - or lack thereof - of the statements provided on his behalf.)
  


It is most essential the examiner discuss the underlying rationale for all opinions expressed, if necessary citing to specific evidence in the file.  However, if the examiner cannot respond to the inquiries without resorting to mere speculation, he/she must so state but, more importantly, also explain why it is not feasible or possible to provide a responsive medical opinion - such as by indicating whether additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another, the limits of medical knowledge have been exhausted, or whatever may be the case.

4.  Review the report of the examination to ensure it is responsive to the questions posed.  If not, take corrective action.  38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998).  

5. Then readjudicate the claims for service connection for bilateral degenerative joint disease of the knees, a right foot disability, and sleep apnea, in light of this and all other additional evidence.  If the claims are not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  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 him that the conducting 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 claims.  His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated.  He is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655. 

These claims 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. 2013).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs