Citation Nr: 1338389	
Decision Date: 11/22/13    Archive Date: 12/06/13

DOCKET NO.  10-20 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

T. M. Gillett, Counsel


INTRODUCTION

The Veteran served on active duty from June 1987 to June 1991. 

This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA).

The Veteran testified at a hearing at the RO in October 2012, before the undersigned Veterans Law Judge (Travel Board hearing)

In September 2012, the Veteran submitted additional evidence to the Board with a waiver of Agency of Original Jurisdiction (AOJ) review. 

The issue of service connection for a left knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC.


FINDINGS OF FACT

1. In a June 2009 rating decision, the RO denied the Veteran's application to reopen service connection for a left knee disorder, because the evidence did not show a relationship between a currently diagnosed left knee disorder and service; the Veteran did not appeal this decision to the Board and it became final. 

2. The evidence associated with the claims file subsequent to the June 2009 rating decision relates to the unestablished fact of a relationship between a diagnosed left knee disorder and an incident of service; the newly submitted evidence is neither cumulative nor redundant of evidence previously of record; and raises a reasonable possibility of substantiating the claim of service connection for a left knee disorder.



CONCLUSIONS OF LAW

1. The June 2009 rating decision denying the reopening of service connection for a left knee disorder became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2012); 
38 C.F.R. §§ 20.302, 20.1103 (2012).

2. Evidence received since the June 2009 rating decision denying reopening of service connection for a left knee disorder is both new and material, and service connection for a left knee disorder is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). In this instance, the Veteran was seeking to reopen a previously denied claim for service connection. As this decision will fully grant the Veteran's application to reopen this claim, the Board need not discuss the VCAA notice requirements regarding such applications.

New and Material Evidence
And Service Connection

Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C.A. § 7105. However, pursuant to 
38 C.F.R. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).

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). Furthermore, 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. 

Regardless of the RO's determination as to whether new and material evidence has been submitted, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C.A. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a previously denied claim.

In order to prevail on the issue of service connection, generally, there must be 
(1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  

Left Knee Disorder

The Veteran essentially contends that he developed a left knee disorder during service. In a June 2009 rating decision, the RO denied the Veteran's application to reopen service connection for a left knee disorder. The Veteran did not file a required Notice of Disagreement (NOD), indicating that he specifically disagreed with the RO's findings in the June 2009 rating decision. Instead, in August 2009, the Veteran filed a statement, indicating that he wished "to reopen my claim of s.c. for my left knee...." Therefore, the August 2009 statement, on its face, was a new application to reopen service connection for a left knee and not an NOD specifically disagreeing with the June 2009 rating decision. The Veteran did not file the required NOD, specifically disagreeing with the June 2009 rating decision, within the one-year-period allowed for the filing of such documents. Therefore, the June 2009 rating decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103.

In the June 2009 rating decision, the RO denied the Veteran's application to reopen service connection for a left knee disorder because the evidence did not show a relationship between a currently diagnosed left knee disorder and service. In a September 2012 private treatment record, labeled an "Independent Medical Evaluation," the Veteran reported injuring his knee during service in a motor vehicle accident. The Veteran indicated that he hit a curb while driving a vehicle along the flight line, causing his knee to hit the dashboard and twist. The Veteran stated that he had experienced knee pain since that time. After an examination, the private examiner diagnosed the Veteran as having a persistent medial meniscus tear, arthritis in the medial compartment, and synovitis of the left knee. The private examiner wrote that this injury was more likely than not related to the in-service injury incurred in the motor vehicle accident. 

When assuming the credibility of this evidence, as the Board must in deciding whether to reopen a claim, the Board finds that this evidence relates to the unestablished fact of a relationship between a diagnosed left knee disorder and an incident of service. The newly submitted evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of service connection for a left knee disorder. Accordingly, the Veteran's previously denied claim for entitlement to service connection for a left knee disorder is reopened.


ORDER

New and material evidence having been received, the appeal to reopen service connection for a left knee disorder is granted.


REMAND

Although the Veteran indicates that he experienced a left knee injury during an in-service motor vehicle accident, the service treatment records contain no notation indicating treatment or diagnosis for such an injury. Yet, the service treatment records indicate that the Veteran sustained a questionable knee strain during service in June 1988. In a September 2007 VA medical examination report, provided to determine the nature and etiology of the Veteran's claimed left knee disorder, a VA examiner diagnosed the Veteran as having a tear of the medial meniscus, repaired by an arthroscopic procedure, with residuals of pain. Having done so, the VA examiner opined that the Veteran's current knee disorder was not likely due to the Veteran's 1988 knee injury. However, the VA examiner did not provide any rationale for this opinion. Therefore, an additional examination to determine the nature and etiology of the Veteran's claimed left knee disorder should be provided. 

The Board notes that the service treatment records included in the claims file do not contain a service discharge examination report. As this claim is being remanded, attempts should be made to procure any service treatment records not currently included in the claims file. 

Accordingly, the case is REMANDED for the following action:

1. Attempt to procure any outstanding service treatment records, to especially include a service discharge examination report. Please note that efforts to obtain Federal records are to continue until either the records are received or notification is provided that further efforts to obtain them would be futile. All records/responses received must be associated with the claims folder.

2. After the above had been performed, schedule the Veteran for a VA examination to determine the etiology of the Veteran's claimed left knee disorder. The relevant evidence from the claims folder should be provided to the VA examiner and should be reviewed by the VA examiner in connection with the examination. 

The VA examiner should also note that the Veteran underwent a post-service arthroscopic procedure to repair a medial meniscus tear in December 2006.

After an interview of the Veteran and all tests and studies required, the VA examiner should offer the following opinion:

Is it at least as likely as not that the Veteran's left knee disorder had its onset during service or is otherwise related to service or an incident of service, to specifically include the June 1988 injury incurred when the Veteran fell over a chair noted in the service treatment records?

The VA examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.

A rationale must be provided for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinion with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons must be so stated. The VA examiner should in such case explain why it would be speculative to respond.

3. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefits sought in connection with the claim remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond.  

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 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).




______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs