Citation Nr: 1334548 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-32 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right knee disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for cervical spine degenerative joint disease with left arm radiculopathy. 4. Entitlement to service connection for lumbar spine degenerative joint disease. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran failed to report for a Decision Review Officer (DRO) hearing in August 2011 and for a travel board hearing in July 2013. The Veteran has not provided good cause for his failures to report and has not requested to reschedule either hearing. The hearing requests are considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). In September 2011, the Veteran's attorney withdrew representation. See 38 C.F.R. § 14.631(c) (2013). The VBMS and Virtual VA folders have been reviewed. The issues of entitlement to service connection for cervical spine degenerative joint disease with left arm radiculopathy and for lumbar spine degenerative joint disease are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In August 2007, the RO denied service connection for right and left knee conditions, finding that new and material evidence had not been received to reopen the claims. The Veteran did not appeal the decision, and evidence or information relevant to the issues was not received within the following year. 2. The evidence associated with the record since the August 2007 rating decision is cumulative and is not new. CONCLUSIONS OF LAW 1. The August 2007 decision denying service connection for left and right knee disabilities is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156 (2013), § 20.1103 (2012). 2. The evidence received subsequent to the August 2007 rating decision is not new and material, and the claims for service connection for right and left knee disorders are not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In October 2009, prior to the rating decision in question, VA notified the Veteran of the information and evidence necessary to establish a claim for service connection, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will provide. He was advised that service connection for a bilateral knee condition was previously denied. The letter explained the definition of new and material evidence and of the reasons for the denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The letter also provided information regarding how VA assigns disability evaluations and effective dates. VA has also satisfied its duty to assist. The claims folder contains the Veteran's service treatment records and VA medical records. The Veteran has not specifically identified any additional relevant records that need to be obtained. The Board acknowledges that the Veteran was not provided a VA examination to determine the nature and etiology of his claimed right and left knee disabilities. The requirements for providing a VA examination apply to claims to reopen a finally adjudicated claim only if new and material evidence is presented or secured. See 38 C.F.R. § 3.159(c)(4)(iii). As discussed below, the Board does not find new and material evidence sufficient to reopen the claims of entitlement to service connection for right and left knee disorders and thus, an examination is not warranted. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication with regard to the issues decided. 38 C.F.R. § 3.159(c). Analysis In September 1998, the RO denied service connection for a bilateral knee condition, finding that the claim was not well-grounded. The decision noted that service records did not show any complaints or treatment for the claimed condition and that the Veteran failed to report for a VA examination. The RO noted that there was no evidence of the condition. The Veteran did not appeal the decision, and evidence or information relevant to this issue was not received within the following year. The decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. In January 2007, the Veteran requested to reopen his claim. In August 2007, the RO denied service connection for right and left knee conditions, finding that new and material evidence had not been submitted to reopen the claims. The Veteran did not appeal the decision, and evidence or information relevant to these issues was not received within the following year. This decision is also final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156, 20.1103. In September 2009, the Veteran requested to reopen his claim. In January 2010, the RO denied the claims for service connection for right and left knee conditions because the evidence submitted was not new and material. The Veteran disagreed with the decision and perfected this appeal. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that received by VA since the last final disallowance of the appellant's claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C.A. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). As set forth, the last final disallowance was in August 2007. This decision noted that the Veteran was previously denied benefits for a bilateral knee condition because there was no evidence showing that the disability began in or was caused by service. The record did contain evidence of chondromalacia and "DJD" of the knees. Evidence of record at the time of this decision included the Veteran's claims, service records, and VA medical center records. Service treatment records do not document complaints or treatment for a right or left knee disorder. The Veteran's DD Form 214 shows a military occupational specialty of administrative specialist. He was awarded various decorations, to include the Parachutist Badge. In his September 1998 claim, the Veteran reported that both knees were hurt while making a parachute jump and that he had damaged cartilage in 1997. In his January 2007 claim to reopen for bilateral knee problems, the Veteran stated that he was a parachutist at Fort Bragg. VA records show that in January 2007, the Veteran underwent an orthopedic consult for painful knees. He reported that he had 55 good jumps, plus training, running, and forced marching with a rucksack. He got out of the military because of his knee pain. Since then he has tried contract work, roofing, and heavy equipment, but his knees continued to cause problems. X-rays showed mild degenerative changes of the knees. There was a notation of DJD of the knees. Diagnosis was bilateral chondromalacia patellae. Knee braces were issued in March 2007. Pertinent evidence received since the August 2007 final decision includes the Veteran's claim and VA medical center records. In September 2009, the Veteran indicated he would like to establish a claim for service connection for his right and left knees. The Veteran's former attorney submitted a notice of disagreement in January 2010 and a VA Form 9 in July 2010. Additional information regarding the claimed bilateral knee disability was not provided. VA medical records show continued complaints and treatment related to bilateral chondromalacia patellae and degenerative joint disease. On review, the additional evidence is cumulative. See Anglin. That is, there was evidence of current bilateral knee disability (chondromalacia patellae, "DJD" and degenerative changes) at the time of the prior decision and evidence since that time merely shows a continued diagnosis and treatment for same. The Veteran has not submitted new evidence showing in-service complaints, arthritis manifested to a compensable degree within one year of discharge, or otherwise suggesting a relationship between currently diagnosed disability and his active service, to include parachute jumps. Stated differently, at the time of the prior decision there was evidence of current disability but no evidence of in-service disease or injury or of a nexus to service other than the Veteran's lay opinion. Since that determination, nothing has changed. The preponderance of the evidence is against the claims and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2013). ORDER The application to reopen the claim for service connection for a right knee disorder is denied. The application to reopen the claim for service connection for a left knee disorder is denied. REMAND In September 2009, the Veteran claimed service connection for his neck and back. In January 2010, the RO denied service connection for cervical spine degenerative joint disease with left arm radiculopathy (claimed as neck condition), and for lumbar spine degenerative joint disease (claimed as back condition). The Veteran disagreed with the decision and perfected this appeal. Service treatment records document various complaints related to the neck and low back. A separation examination is not of record. VA records show post-service complaints and treatment related to the neck and back. For example, the Veteran was seen in the emergency room in May 2005 for low back pain, which occurred after lifting heavy boxes. He was also seen in the emergency room in December 2008 with complaints of intermittent neck and shoulder pain for the past 8 months that radiates down his arm. In October 2009, he was seen with complaints of constant low back pain following a motor vehicle accident 2 weeks prior. He also reported general muscle pain and neck pain. He denied pain over the cervical spine. Assessment included generalized muscle strain and torticollis, both status post motor vehicle collision. In November 2009, the RO requested a VA examination. The examiner was to provide an opinion as to whether it was as least as likely as not that any current neck and/or back condition was related to military service. The Veteran underwent a VA spine examination in December 2009. He reported that while he was in jump school he landed wrong and hurt his neck and back. He denied being seen for this incident but was seen later for intermittent neck and back pain. Following examination, diagnosis was lumbar spine degenerative joint disease and cervical spine degenerative joint disease with left arm radiculopathy. Regarding the question posed, the examiner stated she was unable to resolve the issue without resorting to mere speculation. The following rationale was provided: The Veteran's c-file does indicate complaints of cervical and lumbar pain during his time in the military. These complaints occurred on November 14, 1990, April 28, 1994, and August 11, 1995. These complaints appeared to be self-limiting in nature and improved prior to discharge. There was also no evidence of chronicity of care available after leaving the military. The Veteran reports that he has worked construction since leaving the military, along with some telemarketing jobs. He reported that he is currently not working because the construction business has slowed with the cold weather. Unfortunately, I could not determine without speculation when and how the Veteran's current neck and back conditions occurred. In Jones v. Shinseki, 23 Vet. App. 382, 390 (2009), the Court held that, before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence. In this case, the examiner provided a rationale for her determination. However, the question is not whether she can determine "when and how" the current back and neck disabilities occurred or had their onset, but rather, whether it is "at least as likely as not" that the current cervical and lumbar spine disabilities are related to active service or events therein, to include the complaints noted during service and his multiple parachute jumps. The Board further notes that while the examiner referenced several service treatment records in her rationale, she did not discuss the January 1996 entry, wherein the Veteran was seen with complaints of a neck and upper back injury. He reportedly fell 6 feet on to his back while doing physical training. Assessment included left trapezius muscle strain versus contusion. On review, the Board does not find the examination adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate). A remand is necessary to obtain additional opinion. Finally, it appears that the Veteran receives VA medical treatment. VA medical records were last printed in January 2010. On remand, additional relevant VA medical records should be obtained. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain relevant medical records from the VA Medical Center in Beckley, West Virginia, for the period from January 2010 to the present. All records obtained should be associated with the claims folder or virtual folder. With regard to Federal records, the AMC/RO should follow the procedures as set forth in 38 C.F.R. § 3.159(c)(2). 2. Upon completion of the foregoing, the AMC/RO should return the December 2009 VA examination and medical opinion for addendum. The claims folder should be available for review. Additional examination is not necessary unless requested by the examiner. If the December 2009 examiner is no longer available, the information should be requested from a similarly qualified VA examiner. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's current cervical spine disability with left arm radiculopathy and lumbar spine disability are related to active service or events therein. In making this determination, the examiner is advised that the Veteran is competent to report injuring his neck and back during a parachute jump. The examiner should discuss service treatment records, to include the January 1996 neck and upper back injury. The significance of post-service injuries should also be addressed. A complete rationale must be offered for any opinion provided. 3. The AMC/RO must review the examination report to ensure that it is in complete compliance with the Remand directives. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 4. Upon completion of the requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issues of entitlement to service connection for cervical spine degenerative joint disease with left arm radiculopathy and for lumbar spine degenerative joint disease. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant 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). 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs