Citation Nr: 1338235 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 10-18 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been received with respect to a claim of service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from August 1978 to November 1986 and from December 2002 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening a previously denied claim of service connection for a right knee disorder. By the decision below, the claim is reopened. The underlying claim of service connection is addressed in the remand that follows the decision. FINDINGS OF FACT 1. By an April 2004 decision, a claim of service connection for a right knee disorder was denied; the Veteran did not appeal. 2. New evidence that tends to substantiate the claim of service connection for a right knee disorder has been received since the 2004 denial. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for a right knee disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2013). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the newly submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as existing evidence not previously submitted to agency decision-makers. 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) (2013). In August 2003, the Veteran initially filed a claim of service connection for a right knee disorder; that claim was denied in an April 2004 rating decision. The Veteran was informed of that decision in an April 2004 letter. The Veteran did not appeal that decision, and no new evidence appears in the file until the Veteran filed his claim to reopen in July 2009. As no new and material evidence was received within the appeal period following the April 2004 rating decision, that decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Additionally, no new service department records have been associated with the claims file that were not already of record at the time of the April 2004 rating decision; thus, a de novo review of the record may not occur without the presentation of new and material evidence. See 38 C.F.R. § 3.156(c) (2013). Moreover, the Veteran was appropriately notified of that rating decision in the April 2004 letter and no notice of disagreement was received within one year of such notification. Accordingly, the April 2004 rating decision is considered final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). Therefore, new and material evidence is required to reopen the claim of service connection for knee disability. See 38 U.S.C.A. § 5108 (West 2002); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. In the April 2004 rating decision, the Veteran was denied service connection for a right knee disorder as the evidence demonstrated that he had a pre-existing right knee disorder at the time of his December 2002 enlistment, which was a result of a 1986 motor vehicle accident and had been operated on in 1988. The RO determined that the Veteran's right knee did not suffer any injury during his most recent period of service and that the evidence of record demonstrated that his right knee was not aggravated by service, as the level of symptomatology he experienced in service was the same as he suffered prior to service. On appeal, the Veteran stated that he reentered military service in December 2002, at which time his right knee was perfectly fine following a successful 1988 surgery. He indicated that he horizontally tore his lateral meniscus during lanes training at Fort Campbell in preparation for deployment to the Republic of Iraq. He further indicated that he had surgery on his knee at Blanchfield Army Hospital. The Board notes that this is not new evidence, as this is similar to what the Veteran reported in his previous claim. What is new and material, however, is an August 2009 letter from the Veteran's commanding officer, Major H.L.B., at Fort Campbell in 2002 and 2003, which corroborates that the Veteran injured his right knee during that period of active service. Major H.L.B. stated that the Veteran "suffered a tear in his knee while participating in field training exercises and lanes training as part of the unit's validation requirements. As a result of his injury, he was treated at Blanchfield Army Hospital and received surgical treatment as well as follow-up physical therapy." Such is new and material evidence because it corroborates that the Veteran suffered a right knee injury during his 2002-2003 period of service, and that such potentially demonstrates an aggravation of his pre-existing right knee condition. Accordingly, the Board finds that the above-referenced evidence constitutes new and material evidence, as it relates directly to the question of whether the Veteran's pre-existing right knee disorder was aggravated during his most recent period of active service. The evidence raises a reasonable possibility of substantiating the claim. As such, the requirements under 38 C.F.R. § 3.156(a) have been met and the claim is reopened. ORDER New and material evidence having been received, the claim of service connection for a right knee disorder is reopened, and to that limited extent the appeal is granted. REMAND The Veteran underwent a VA examination of his right knee in March 2004, though the examiner did not render an opinion with regards to whether the Veteran's pre-existing right knee disorder was aggravated by service. Thus, a remand is necessary in order to afford the Veteran another VA examination which addresses that issue. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). The Board reviewed the Veteran's service treatment records. However, it does not appear that any surgical or operation reports regarding right knee surgery in May 2003, or at some other time during the Veteran's 2002-2003 period of active service, have been obtained and associated with the claims file. Thus, attempts to obtain those records should be made on remand. Also, any ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Nashville VA Medical Center, or any other VA medical facility that may have treated the Veteran, since September 2013 and associate those documents with the claims file. 2. Attempt to obtain any surgical records from the Blanchfield Army Hospital regarding any right knee operation that may have occurred from December 2002 to August 2003. If those records are unavailable and further attempts to obtain those documents would be futile, such should be noted in a formal finding of unavailability and the Veteran should be so informed. 3. Ask the Veteran to identify any private treatment that he may have had for his right knee disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 4. After completing the development sought above, schedule the Veteran for a VA examination in order to determine the nature and etiology of each right knee disorder. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in the record. After examination and review of the claims file, for each right knee disorder found, including any arthritic condition, the examiner should indicate whether it was more likely, less likely, or at least as likely as not (50 percent or greater probability) that the disability began during service, or in the case of bursitis, which was noted prior to entry in October 2002, that it was aggravated (i.e., permanently worsened beyond the normal progression of the disease) by his 2002-2003 period of active service, to include any training exercise injury during that period of time, as noted by the Veteran and his commanding officer. The examiner must specifically discuss the Veteran's lay evidence regarding his symptomatology prior to entrance into active service in December 2002 and his symptomatology during and after his 2002-2003 period of active service. The examiner should additionally discuss the findings noted in the March 2004 VA examination, and any other relevant and pertinent medical evidence in the record. The medical reasons for accepting or rejecting the Veteran's report of prior symptomatology, in-service injury and continuity of symptoms thereafter should be set forth in detail. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction (AOJ) should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 5. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claim of service connection for a right knee disorder. If a benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs