Citation Nr: 1327017	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  09-48 554	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left knee disability.

2.  Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disability.

3.  Entitlement to service connection for throat cancer, to include as secondary to exposure to Agent Orange and asbestos.


REPRESENTATION

Appellant represented by:	Kenneth LaVan, Attorney


WITNESSES AT HEARING ON APPEAL

Veteran and Spouse
ATTORNEY FOR THE BOARD

David S. Ames, Counsel


INTRODUCTION

The Veteran served on active duty from April 1971 to December 1975.

This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida (RO).

The issues of entitlement to service connection for a left knee disability, a right knee disability, and throat cancer are REMANDED to the RO.


FINDINGS OF FACT

1.  A February 2006 rating decision denied the Veteran's claim to reopen the issue of entitlement to service connection for a bilateral knee disability.

2.  Evidence associated with the claims file since the February 2006 rating decision was not of record at the time of the February 2006 rating decision and relates to unestablished facts necessary to substantiate the Veteran's claim of entitlement to service connection for a left knee disability.

3.  Evidence associated with the claims file since the February 2006 rating decision was not of record at the time of the February 2006 rating decision and relates to unestablished facts necessary to substantiate the Veteran's claim of entitlement to service connection for a right knee disability.



CONCLUSIONS OF LAW

1.  Evidence submitted since the last final denial to reopen the claim of entitlement to service connection for a left knee disability is new and material, and therefore, the claim is reopened.  38 U.S.C.A. §§ 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).

2.  Evidence submitted since the last final denial to reopen the claim of entitlement to service connection for a right knee disability is new and material, and therefore, the claim is reopened.  38 U.S.C.A. §§ 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

An unappealed rating decision in February 1997 denied service connection for bilateral knee injuries on the basis that the claim was not well grounded as there was no evidence of an in-service knee injury nor was there any evidence relating any post-service knee injury to active service.  Subsequent rating decisions dated in June 2002 and February 2006 denied the Veteran's claims to reopen the issue of entitlement to service connection for a bilateral knee disability on the basis that there was no evidence that the Veteran's knee disabilities were incurred in or caused by active service.  The relevant evidence of record at the time of the February 2006 rating decision consisted of the Veteran's service medical records and VA medical records dated from June 1977 to October 2005.
 
The Veteran did not file a notice of disagreement after the February 2006 rating decision.  Therefore, the February 2006 rating decision is final based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

A finally decided claim will be reopened in the event that new and material evidence is presented.  38 U.S.C.A. § 5108 (West 2002).  New evidence means existing evidence not previously submitted to VA.  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 (2012).

In May 2008, a claim to reopen the issue of entitlement to service connection for a bilateral knee condition was received.  Evidence of record received since the February 2006 rating decision includes service personnel records, Social Security Administration (SSA) records, private medical records created in conjunction with a SSA disability application, and VA medical records dated from June 2007 to December 2011. 

While none of the new evidence demonstrates that the Veteran had a left or right knee disability during service, the Veteran's representative has presented a new theory of the case, that the Veteran's left and right knee disabilities are secondary to pes planus.  In this regard, the Board notes that an August 2012 rating decision granted service connection for pes planus, effective December 9, 2011.  Accordingly, the evidence of record shows that the Veteran is now claiming that his bilateral knee disability is secondary to a service-connected disability.  The Veteran claims that his pes planus has impacted his gait, which has in turn impacted his knees.  That evidence is presumed credible for the purpose of determining whether to reopen the claim.

The Board finds that the new evidence includes competent evidence related to unestablished facts necessary to substantiate the claims and the new evidence creates a reasonable possibility of substantiating the claims.  As the new evidence is material, the claims must be reopened.  Molloy v. Brown, 9 Vet. App. 513 (1996).  To that extent only, the claims are allowed.





ORDER

As new and material evidence has been submitted, the claim of entitlement to service connection for a left knee disability is reopened.  To that extent only, the appeal is granted.

As new and material evidence has been submitted, the claim of entitlement to service connection for a right knee disability is reopened.  To that extent only, the appeal is granted.


REMAND

The Veteran seeks service connection for left and right knee disabilities, to include as secondary to pes planus.  The medical evidence of record shows that the Veteran has current diagnoses of a bilateral knee disability and he is service-connected for pes planus.  In addition, the Veteran claims that his left and right knee disabilities were caused by an in-service injury when he fell off a ladder.  The Veteran's service medical records confirm that he fell from a ladder.  While the service medical records do not include any complaints of knee symptoms as a result of that injury, they specifically state that the Veteran experienced multiple symptoms of other parts of his lower extremities.  The Veteran has never been provided with a VA medical examination to determine the etiology of his currently diagnosed bilateral knee disability.  Therefore, the Board finds that a medical examination is needed to determine whether his currently diagnosed bilateral knee disability is related to service or to his pes planus.  38 C.F.R. § 3.159(c)(4) (2012).

The Veteran also seeks service connection for a malignant neoplasm of the tonsils, claimed as throat cancer.  Specifically, the Veteran states that this disability began in service with manifestations of throat swelling.  The Veteran's service medical records include multiple complaints of a sore throat and difficulty swallowing.  Accordingly, the Veteran's service medical records include complaints of throat symptoms and his post-service medical evidence includes diagnoses of cancer of the tonsils.  The Veteran has never been provided with a VA medical examination to determine the etiology of his diagnosed throat or tonsil cancer.  Therefore, the Board finds that a medical examination is needed to determine whether any diagnosed throat or tonsil cancer is related to service.  38 C.F.R. § 3.159(c)(4) (2012).

Accordingly, the case is REMANDED for the following actions:

1. Schedule the Veteran for a VA examination to ascertain the etiology of any diagnosed left and right knee disabilities.  The examiner must review the claim file and should note that review in the report.  Based upon review of the available lay and medical evidence, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left or right knee disability found was incurred in or aggravated during service.  The examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any left or right knee disability found was caused or aggravated by the service-connected pes planus.  If any left or right knee disability found is attributable to factors unrelated to the Veteran's service or pes planus, the examiner should specifically so state.  A complete rationale for all opinions must be provided.

2. Schedule the Veteran for a VA examination to ascertain the etiology of any diagnosed throat disability, to specifically include throat and/or tonsil cancer and any residuals thereof.  The examiner must review the claim file and should note that review in the report.  Based upon review of the available lay and medical evidence, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any throat disability found, to specifically include throat or tonsil cancer and any residuals thereof, was incurred in or aggravated by the Veteran's period of service.  If any throat disability found is attributable to factors unrelated to the Veteran's service, the examiner should specifically so state.  A complete rationale for all opinions must be provided.

3. Then, readjudicate the claims.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs