Citation Nr: 1337471 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 10-19 328 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen the claim of service connection for a left knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havivi, Associate Counsel INTRODUCTION The Veteran had active service from June 1965 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the RO in Augusta, Maine. Jurisdiction of the claims file now rests with the RO in Indianapolis, Indiana. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System reveals additional records which are pertinent to the present appeal, namely the Veteran's Appellant Brief, which will be discussed below. The Veteran's claim of service connection for a left knee disorder was originally denied by the RO in an August 1994 rating decision. This decision went unappealed and became final. A July 2009 rating decision declined to reopen the claim on the basis that the evidence was new but not material. The issue of ischemic heart disease is not before the Board because the VA did not receive a Notice of Disagreement from the Veteran within a year of August 2010 rating decision that denied his claim of service connection. The reopened claim of service connection for a left knee disorder and the claim of service connection for a right knee condition are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The original claim of service connection for a left knee disorder was denied in an August 1994 rating decision; the Veteran was provided with notice of that decision and apprised of his appellate rights but did not timely disagree. 2. The evidence added to the record since the August 1994 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for a left knee disorder. 38 U.S.C.A. §§ 5103, 5103A, 5104, 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 20.1103 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5108, 5125, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.156, 3.159, 3.326(a), 20.1103 (2012). Specific to requests to reopen, the claimant must be notified of the criteria required to reopen the claim and the criteria for establishing the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The notice letter provided to the Veteran in April 2009 addressed all notice elements required by Kent. In light of the favorable action taken hereinbelow, further discussion as to VCAA is not required at this time. New and Material Evidence The Veteran seeks to reopen his claim of service connection for a left knee disorder. A claim of service connection for a left knee disability was previously considered and denied by the RO in an August 1994 rating decision. The Veteran did not perfect an appeal and that decision became final. 38 C.F.R. § 20.1103. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C.A. § 5108; see Glynn v. Brown, 6 Vet. App. 523, 527 (1994). The Veteran petitioned to reopen in February 2009. The RO declined to reopen in a July 2009 rating decision. The Veteran timely filed a Notice of Disagreement in July 2009 and a Statement of the Case was issued in March 2010. The Veteran timely perfected his appeal with a May 2010 VA Form 9. Although the RO declined to reopen the previously denied claim, the Board must consider the question of whether new and material evidence has been received because it is Board's jurisdiction to reach the underlying claims and adjudicate them de novo. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. Barnett, 83 F.3d at 1383. As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim, were the claim to be reopened, including by triggering VA's duty to assist. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant to submit medical nexus evidence when the claimant has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the August 1994 rating decision that denied service connection for a left knee disability, the evidence consisted of the service treatment records, a VA examination report and private medical records. The RO denied service connection on the basis that an injury in service was acute and had resolved without permanent impairment. Furthermore, there was no evidence of chronic knee problems after service until a 1994 injury. Subsequent to the August 1994 rating decision, private medical records addressing a nexus between the Veteran's in-service injury and his current left knee disability have been associated with the file. Furthermore, the Veteran's own lay statements and other private medical treatment records concerning his knee disability were added to the file. In his Appellant Brief, the Veteran argues that these new records are new and material. He noted that the law requires continuity of symptomatology, not of treatment. He also states that he desires a VA examination, as his previous one was in 1994. As it is presumed to be credible, this evidence is new, as conceded by the RO. The evidence is also material because it relates to an previously unestablished fact necessary to substantiate the claim, namely a possible nexus between the documented in-service injury and the Veteran's current left knee disability. ORDER As new and material evidence has been received to reopen the claim of service connection for a left knee disorder, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. REMAND The case must remand prior to any further adjudication of the Veteran's reopened claim. Without further clarification, the Board is without medical expertise to determine if the Veteran's knee disabilities are related to service. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The RO received two nexus letters from Dr. V.N.E., bearing the same January 2009 date, but different content. In one, letter, the physician stated that he was unable to say if the Veteran's osteoarthritis was directly caused by his service. In the other letter, the Doctor stated that he believed that "a combination of [the Veteran's] previous injuries, including the injury sustained in the military and his weight status over time, [might] have contributed greatly to his needing bilateral total knee replacement." On remand, the RO should seek clarification from Dr. V.N.E. The RO should also take into account all lay statements made regarding the Veteran's knee disabilities. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). This includes the statements the Veteran made in his February 2009 claim to reopen and in his May 2010 VA-9 form. As the Veteran had private medical treatment in the past, on remand, any outstanding treatment records should be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1),(2). Additionally, the Veteran should be afforded a new VA examination to address the nature and likely etiology of the claimed bilateral knee disability. Because the VA undertook to give the Veteran an examination in July 1994, it must ensure that the examination and opinion are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). While there were no inherent issues of adequacy in the examination, the passage of time and the Veteran's ongoing treatment may have rendered it inadequate to properly rate the Veteran's disabilities on remand. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to obtain and associate with the claims file copies of all outstanding records referable to treatment rendered the Veteran for his claimed bilateral knee condition by private health care providers since service. The RO must document all steps taken to obtain the records. If the records cannot be obtained, the RO must note such in the claims file. 2. The RO also should take all indicated action to obtain copies of all medical records from Dr. V.N.E of the Community Health Network in Indianapolis, Indiana. The RO must document all steps taken to obtain the clarification. If the clarification cannot be obtained, the RO must note such in the claims file. 3. The RO then should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed bilateral knee condition. The examiner should review the claims file in conjunction with the examination and should address such review in the examination report. The examiner should elicit from the Veteran and record a complete medical history. All indicated tests and studies should be completed. After reviewing the entire record, and examining the Veteran, the examiner should opine as to the following: Whether it is at least as likely as not (50 percent probability or greater) that any current disability of either knee is related to an injury or other event or incident of the Veteran's period of active service. If disability of one knee is found to be service incurred, then the question of whether disability of the other knee was caused or aggravated by the service-connected knee condition should be fully address in the opinion. All opinions expressed by the examiner must be accompanied by a complete rationale, with citation to relevant medical findings. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs