Citation Nr: 1335196	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  08-37 228	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for right knee osteoarthritis and if so whether the reopened claim should be granted.  

2.  Entitlement to service connection for left knee osteoarthritis.  

3.  Entitlement to higher ratings for rheumatoid arthritis and osteoarthritis of multiple joints.  

REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs



ATTORNEY FOR THE BOARD

N. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from June 1941 to May 1945.  

The appeal is before the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  Jurisdiction over the case was subsequently transferred to the RO in Winston-Salem, North Carolina.

The Board dismissed the appeal in November 2010 due to the Veteran's death during the pendency of the appeal.  The Board's dismissal did not affect the right of an eligible person to file a request to be substituted as the appellant.  The appellant, as the surviving spouse of the Veteran, has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claims. 

As a procedural matter, the Board notes that a claim for service connection for right knee osteoarthritis was denied in an unappealed rating decision issued in June 1999.  Therefore, the issue of whether new and material evidence has been received to reopen the claim is before the Board.  The new and material issue is decided herein while the other issues on appeal are addressed in the REMAND that follows the ORDER section of this decision.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.  


FINDINGS OF FACT

1.  Entitlement to service connection for right knee osteoarthritis was denied in a June 1999 rating decision; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period.

2.  The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to an unestablished fact necessary to substantiate the claim for service connection for right knee osteoarthritis.


CONCLUSION OF LAW

New and material evidence to reopen the claim of entitlement to service connection for right knee osteoarthritis has been presented.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria

Generally, a claim which has been denied in an unappealed RO decision may not be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.  

New evidence is defined as existing evidence not previously submitted to agency decisionmakers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim."  Shade v. Shinseki, 24 Vet. App. 110 (2010).  See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 




Factual Background and Analysis

Entitlement to service connection for osteoarthritis of the right knee was denied in a June 1999 rating decision because the evidence did not show that the osteoarthritis was related to service or the service-connected rheumatoid arthritis.  The Veteran was notified of this decision but did not appeal the decision or submit pertinent evidence within the appeal period.  

The evidence received after the June 1999 decision, namely the April 2009 VA examination records, indicates that rheumatoid arthritis can lead to secondary osteoarthritis.  This evidence is not cumulative or redundant of the evidence previously of record.  Moreover, it relates to an unestablished fact necessary to substantiate the claim.  Accordingly, reopening of the claim is in order.


ORDER

The Board having determined that new and material evidence has been received, reopening of the claim for service connection for right knee osteoarthritis is granted.


REMAND

With respect to the service connection claim, based on evidence of a current disability and the evidence indicating that osteoarthritis can develop secondary to rheumatoid arthritis, a VA opinion is needed to determine the etiology of the osteoarthritis of the knees.  

With respect to the rating issue on appeal, the Board notes that the February 2008 rating decision on appeal continued the 20 percent rating assigned for rheumatoid arthritis as an active process.  During the pendency of the appeal, the RO granted service connection for osteoarthritis of the hands and wrists.  Effective December 1, 2008, it terminated the 20 percent rating assigned for rheumatoid arthritis as an active process and assigned separate ratings of 10 percent for each wrist and each hand for rheumatoid arthritis and osteoarthritis in those joints.  In the Statement of the Case and a Supplemental Statement of the Case, the RO addressed the issue of entitlement to a rating in excess of 20 percent for rheumatoid arthritis prior to December 1, 2008.  It did not address the ratings assigned for rheumatoid arthritis and osteoarthritis from December 1, 2008.  Since there is no indication that the Veteran limited his appeal to the period prior to December 1, 2008, the appellant must be provided a Supplemental Statement of the Case addressing the ratings in effect from December 1, 2008.

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions:

1.  Obtain an opinion from a physician with sufficient expertise to determine the etiology of the osteoarthritis of the Veteran's knees.  The claims folders and any pertinent evidence in Virtual VA that is not contained in the claims folders must be made available to and reviewed by the physician.

The physician should state an opinion as to whether there is a 50 percent or better probability that the osteoarthritis began in or is otherwise etiologically related to the Veteran's active service and, if not, an opinion as to whether there is a 50 percent or better probability that the osteoarthritis was caused or permanently worsened by the Veteran's rheumatoid arthritis.  

The rationale for all opinions expressed must also be provided.  If the physician is unable to provide any required opinion, he or she should explain why.

2.  Undertake any other indicated development.

3.  Thereafter, readjudicate the claim.  Then, provide the appellant and her representative with a Supplemental Statement of the Case addressing the ratings assigned for rheumatoid arthritis and osteoarthritis from December 1, 2008, and if appropriate, the issue of entitlement to service connection for osteoarthritis of one or both knees.  They should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The appellant need take no action unless she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court 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).


____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs