Citation Nr: 1400354	
Decision Date: 01/07/14    Archive Date: 01/23/14

DOCKET NO.  10-24 793	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a right knee disorder and, if so, whether service connection is warranted.  

2.  Entitlement to an initial disability evaluation in excess of 10 percent for the Veteran's left leg shrapnel fragment wound residuals with Muscle Group XIV injury.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel

INTRODUCTION

The Veteran is the appellant in the instant appeal.  He had active service from January 1986 to October 1992.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Muskogee, Oklahoma, Regional Office which, in pertinent part, determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for a right knee disorder; denied that claim on the merits; determined that a January 2008 rating decision was clearly and unmistakably erroneous in failing to assign an initial 10 percent disability evaluation for the Veteran's left leg shrapnel wound residuals with Muscle Group XIV injury; and assigned an initial 10 percent evaluation for that disability.  In February 2010, the Veteran submitted a notice of disagreement (NOD).  In June 2010, the Muskogee, Oklahoma, Regional Office issued a statement of the case (SOC) to the Veteran which addressed solely the issue of service connection for a right knee disorder.  In June 2010, the Veteran submitted an Appeal to the Board (VA Form 9).   

In July 2011, the Veteran informed VA that he had moved to Texas.  The Veteran's records were subsequently transferred to the Waco, Texas, Regional Office (RO).  The Board has reviewed the physical claims files and both the Veterans Benefits Management System (VBMS) and the "Virtual VA" files so as to insure a total review of the evidence.  

As to the issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a right knee disorder, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  

The issues of the service connection for a right knee disorder and the initial evaluation of the Veteran's left leg shrapnel wound residuals with Muscle Group XIV injury are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required on his part.  

FINDINGS OF FACT

1.  In January 2008, VA denied service connection for a right knee disorder.  The Veteran was informed in writing of the adverse decision and his appellate rights in January 2008.  The Veteran did not submit a NOD with the decision.  

2.  The additional documentation submitted since the January 2008 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran's claim.  


CONCLUSIONS OF LAW

1.  The January 2008 rating decision denying service connection for a right knee disorder is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013).  

2.  New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for a right knee disorder has been presented.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1103 (2013).  
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and to Assist

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103, must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate his claims; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  In this decision, the Board reopens and remands the Veteran's claim of entitlement to service connection for a right knee disorder.  As such, no discussion of VA's duty to notify and to assist is necessary.  


II.  Application to Reopen

Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of an appellant's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error.  38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103.  

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decisionmakers.  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).  Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996).  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  

New and material evidence received prior to the expiration of the appeal period 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).  

In January 2008, VA denied service connection for a right knee disorder as the evidence failed to show that he had the claimed disorder.  The Veteran was informed in writing of the adverse decision and his appellate rights in January 2008.  The Veteran did not submit a NOD with the decision.  

The evidence upon which the January 2008 rating decision was formulated may be briefly summarized.  The Veteran's service treatment records and VA clinical documentation dated in December 2009 do not reflect that the Veteran had a right knee disorder.  In his October 2007 claim for service connection, the Veteran advanced that he had manifested a right knee disorder secondary to his service-connected left lower extremity disabilities due to overcompensating for his left lower extremity impairment.  

New and material evidence pertaining to the issues of service connection for a right knee disorder was not received by VA or constructively in its possession within one year of written notice to the Veteran of the January 2008 rating decision; therefore, that decision became final.  38 C.F.R. § 3.156(b).  

The additional documentation received since the January 2008 rating decision includes clinical documentation from P. Gannon, M.D., dated in June 2007 and July 2007 which conveys that the Veteran was diagnosed with both right knee osteoarthritis and a right medial meniscal tear.  The private clinical documentation is of such significance that it raises a reasonable possibility of substantiating the Veteran's claim for service connection when considered with the previous evidence of record.  As new and material evidence has been received, the Veteran claim of entitlement to service connection for a right knee disorder is reopened.  

ORDER

The Veteran's application to reopen his claim of entitlement to service connection for a right knee disorder is granted.  





REMAND

In light of its reopening above, the Veteran's claim for service connection for a right knee disorder is to be adjudicated on the merits following a de novo review of the entire record.  The Veteran asserts that he incurred a recurrent right knee disorder secondary to his service-connected left lower extremity disabilities.  

The VA right knee evaluation provided to the Veteran is inadequate for rating purposes.  The report of a December 2009 examination for compensation purposes conducted for VA by G. Chacko, M.D., states that the Veteran was diagnosed with right knee degenerative joint disease.  The doctor opined both that "the way [the Veteran's right knee disability] occurred from overcompensation of joint;" "the current diagnosis is not service-connected because there is evidence in the medical record explaining the non-relationship;" and "the explanation is not due to overcompensation."  A December 2009 addendum to the December 2009 examination report conveys the right knee disability "is not based on overcompensation of the joint" and the rationale for that conclusion was "its review of all the medical records."  VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive.  Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  

The Veteran submitted a timely NOD from the initial evaluation assigned for his left leg shrapnel wound residuals with Muscle Group XIV injury.  A SOC addressing that issue has not been issued to the Veteran.  See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999).  

Accordingly, the case is REMANDED for the following action:
1.  Contact the Veteran and request that he provide information as to all treatment of his right knee disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA.  Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record.  If the identified documentation is not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2013).  

2.  Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after January 2013.  

3.  Schedule the Veteran for a VA joint examination in order to assist in determining the current nature and etiology of his right knee disabilities.  All indicated tests and studies should be accomplished and the findings then reported in detail.  

The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified right knee disorder had its onset during active service; otherwise originated during active service; and/or is related to and/or increased in severity beyond its natural progression due to the Veteran's left leg shrapnel wound residuals with Muscle Group XIV injury, left ankle and distal fibular fracture residuals, and other service-connected disabilities.  
All relevant medical records, including those in the claims folders, should be made available to the examiner for review of pertinent documents therein.  The examination report should specifically state that such a review was conducted.  

The examiner should provide a rationale for all opinions and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  

4.  Issue a SOC to the Veteran which addresses the Veteran's entitlement to an initial evaluation in excess of 10 percent for his left leg shrapnel wound residuals with Muscle Group XIV injury.  The Veteran should be given the appropriate opportunity to respond to the SOC.  

5.  Adjudicate the issue of service connection for a right knee disorder on a de novo basis.  If any benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the case is returned to the Board.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development 

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or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).  



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs