Citation Nr: 1336522 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 12-14 400 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disorder, including osteoarthritis and post-operative residuals of arthroscopic anterior cruciate ligament (ACL) reconstructive surgery, claimed to be the result of injury. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1975. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran twice requested hearings to allow him opportunity to testify in support of his claim. In May 2011 he requested a hearing at the RO and in May 2012 he requested a videoconference hearing. However he withdrew all hearing requests in December 2012 and, instead, indicated he wanted the Board to adjudicate his claim based on the evidence already of record. He was first denied service connection for a left knee disorder in April 1982 and appropriately notified of that prior decision in May 1982 and apprised of his procedural and appellate rights in the event he disagreed with that decision and elected to appeal it. He did not however appeal that earlier decision, so it became a final and binding determination concerning this claim. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, etc. (2013). This ordinarily would require new and material evidence since that decision to reopen this claim and warrant further consideration of it on its underlying merits. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Thus, in the February 2011 decision on appeal, the RO properly characterized his claim as first needing to be reopened based on new and material evidence, but which it also chose to do based on service treatment records (STRs) as well as new duty-to-assist regulations. That also was the onus for the RO then having him undergo a VA compensation examination for a medical nexus opinion. Normally, irrespective of what the RO decided concerning whether there is new and material evidence to reopen a claim, so, too, must the Board make this threshold preliminary determination before proceeding further because this initial determination affects the Board's jurisdiction to adjudicate the claim on its underlying merits. See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992). But according to 38 C.F.R. § 3.156(b), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragragh (a) of this section (which is a reference to the normal requirement of having to have new and material evidence concerning the claim to reopen it). So in this circumstance there is no preliminary new-and-material-evidence requirement. Such official service department records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease, regardless of whether the records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; and additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records. See also Vigil v. Peake, 22 Vet. App. 63 (2008) (indicating unit records provided to the RO by the Center for Unit Records Research (CURR) or the Joint Services Records Research Center (JSRRC) constituted official service department records of the type contemplated by 38 C.F.R. § 3.156(c), thus requiring de novo review or reconsideration of the claim, rather than as a petition to reopen the claim). The earlier April 1982 RO decision merely made vague reference to a STR (at the time, it was referred to instead as a service medical record (SMR)) that in 1973 showed the Veteran had sustained a ligament strain of his left knee. Since, however, his discharge examination did not show any residual of that injury, and because there was no record of any treatment ("TX") for this disability since his service, the RO concluded the left knee strain in service had resolved in that no residuals of a chronic left knee disability were found on his discharge examination. The RO's more recent February 2011 decision reconsidering this claim immediately on its underlying merits, however, rather than first as a petition to reopen this claim, makes more specific reference to certain STRs - in particular those on exact dates in March and April 1973. And not only was their discussion of the diagnosis and treatment of the left knee strain in 1973, but also of a specific complaint the Veteran had at the time, namely, of left knee pain. Hence, it appears there may have been additional STRs considered in this more recent decision that perhaps were not previously available. The Board therefore need not first discuss whether there is new and material evidence to reopen this claim, rather, like the RO, may proceed immediately to considering its underlying merits. Prior to doing this, however, the claim must be further developed, so the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Unfortunately, the Board has determined that the Veteran's claim must be remanded for further development. See Shoffner v. Principi, 16 Vet. App. 208, 213 (2002). As already alluded to, he underwent a VA Compensation and Pension examination in February 2011 in order to diagnose his left knee condition and provide comment on its etiology. He was provided an X-ray (radiograph) that the examiner used in diagnosing osteoarthritis of this knee. But it was the examiner's opinion that the Veteran's osteoarthritis was less likely than not associated with an in-service injury, specifically, the knee strain documented in his STRs. Two months following that VA examination, so in April 2011, the Veteran received treatment at a private facility. There, he underwent an MRI of his left knee, which showed a chronic tear of the ACL as well as a tear of the medial meniscus. He consequently underwent arthroscopic surgery a short time later, in May 2011. This additional medical evidence is relevant and was not received until after his VA compensation examination. And while the RO considered it when continuing to deny his claim in the April 2012 Statement of the Case (SOC), the VA examiner did not have this opportunity when previously providing his February 2011 opinion. Thus, an addendum opinion is needed taking into account this new evidence in order to fully consider and describe the state of the Veteran's disability and its etiology. See 38 C.F.R. § 4.1; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Attempt to obtain the MRIs considered by Dr. D.C. in his treatment of the Veteran in April and May 2011 and associate them with the claims file for consideration. 2. Next forward the Veteran's claims file to the VA examiner that performed the February 2011 compensation examination on the Veteran's left knee for an addendum opinion. Following review of the claims file, including especially the additional medical evidence submitted or otherwise obtained since his examination of the Veteran, the examiner should again comment on the likelihood (very likely, as likely as not, or unlikely) the Veteran's left knee disorder is the result of the injury (strain) he sustained to this knee in 1973 during his service. *When providing this supplemental comment, however, the examiner must be certain to consider the records of the additional treatment, including surgery, the Veteran received for his left knee in April and May 2011, so since this VA examiner previously commented on the determinative issue of etiology in February 2011. The surgery since performed was for a chronic tear of the left ACL and a tear of the left medial meniscus, which the Veteran relates back to his left knee ligament strain in service. Supplemental comment therefore is needed concerning whether this additionally noted disability, that is, other than the osteoarthritis diagnosed at the conclusion of the February 2011 VA examination, is related or attributable to the injury in service. Just as before, the term "as likely as not" means at least 50-percent probability. It does not however mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner must provide a clear rationale and bases for all opinions expressed, if necessary citing to specific evidence in the file supporting conclusions. The examiner should also note in his or her opinion that a review of the claims file was done, including especially consideration of this additional medical evidence mentioned, and must discuss pertinent evidence in the claims file. Specifically, consideration must be given to the Veteran's noted treatment of his left knee injury in service, his normal separation examination when exiting service, but also his competent reports of knee pain dating back to at least 1982 when he first filed a left knee claim, and his post-service VA and private treatment records, including specifically the private treatment records regarding his ACL and meniscus tears. If it is the opinion of the VA examiner that the Veteran's left knee condition is the result of other factors unrelated to his military service, such as simple aging, post-service circumstances like additional ("intercurrent") injury, or any other process unrelated to his time in service, there must be discussion of why there is this disassociation. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must nonetheless provide explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question or needs the benefit of additional evidence or information, etc. If it is not possible or feasible to have this same VA examiner comment further, then have someone else equally qualified provide this necessary additional comment, which in this eventuality may require having the Veteran reexamined, but this is left to the designee's discretion. 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).