Citation Nr: 1513749 Decision Date: 03/31/15 Archive Date: 04/03/15 DOCKET NO. 13-09 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim for service connection for a right knee disability, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to December 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. A hearing was held on February 4, 2014, by means of video conferencing equipment with the appellant in Boston, Massachusetts, before Kathleen K. Gallagher, a Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a December 1977 rating decision, the RO denied the Veteran's claim for service connection for a right knee disability; during the relevant appeal period, the Veteran did not submit a notice of disagreement and new and material evidence was not received. 2. Evidence associated with the claims file since the December 1977 decision is new, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for a right knee disability. CONCLUSIONS OF LAW 1. The December 1977 rating decision, in which the RO denied the Veteran's claim for service connection for a right knee disability, is final. 38 U.S.C. § 4005(c) (1977); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977); currently 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 2. As evidence pertinent to the claim for service connection for a right knee disability, received since the RO's December 1977 denial is new and material, the criteria for reopening the claim are met. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Without deciding whether the notice and development required has been satisfied with respect to the issue of whether new and material evidence has been submitted sufficient to reopen a claim for service connection for a right knee disability, the Board concludes that this duty does not preclude the Board from adjudicating this issue because the Board is granting in full the benefits sought on appeal by reopening the claim for entitlement to service connection. If any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. New and Material Evidence In December 1977, the RO denied the Veteran's claim for service connection for a right knee disability. The Veteran was informed of the decisions and did not submit a notice of disagreement or new and material evidence during the appeal period. The RO's December 1977 decision is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 4005(c) (1977); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977); currently 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). The evidence of record for the December 1977 rating decision consisted of service treatment records and the Veteran's claim. The basis for the RO's denial was that the evidence did not demonstrate the presence of a knee injury. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence means existing evidence not previously received by 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). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran submitted a February 2014 private disability benefits questions which includes a diagnosis of chondromalacia patella, right knee. This evidence is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claim, specifically, the presence of a current right knee disability. Therefore it is new and material, and reopening the claim for service connection for a right knee disability is warranted. ORDER New and material evidence having been submitted, the claim for service connection for a right knee disability is reopened. REMAND Reasons for remand: To provide the Veteran with a VA examination and attempt to obtain his complete service treatment records. The Veteran has not yet been provided with a VA examination regarding the nature and etiology of his claimed right knee disability. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when there is (1) competent evidence of a current disability or recurrent symptoms, (2) evidence establishing an "in-service event, injury or disease," (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Veteran's claims file contains a February 2014 private disability benefit questionnaire which included a diagnosis of chondromalacia patella, right knee. Although the physician noted the Veteran's reported history of incurring a twisting knee injury while in service off the coast of Senegal in 1974, no etiological opinion was provided regarding the likelihood of a nexus between the Veteran's current chondromalacia patella and service. At the February 2014 Board hearing, the Veteran testified that he injured his right knee aboard a ship when his knee buckled and twisted, and that he went to the medical facility multiple times regarding this injury, where it was recommended that he ice and bandage the knee. The Veteran also submitted the medical history portion of his December 1974 separation examination, on which he noted swollen or painful joints. The Veteran and his spouse have stated that the he has had right knee pain and has required the use of a brace since service. Based on this evidence, the Veteran should be provided with a VA examination and medical opinion regarding his claim for service connection for a right knee disability. As noted above, the Veteran submitted a page from his December 1974 separation examination. This record, however, is not among the service treatment records (STRs) provided to VA. VA's duty to assist requires it to make as many requests as necessary to secure relevant Federal records, including military STRs. 38 C.F.R. § 3.159(c)(2). VA may halt efforts to secure such records only if VA concludes that the records do not exist or that further efforts to secure the records would be futile. As it appears that the Veteran's complete STRs are not of record, and particularly because the Veteran testified that he was seen multiple times by the ship's medical facility, on remand, additional attempts should be made to procure any outstanding STRs. Accordingly, the case is REMANDED for the following action: 1. Contact any appropriate location to request the Veteran's complete service treatment records, including but not limited to his December 1974 separation examination. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the AOJ must continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The Veteran should be notified of any action taken. All efforts to obtain these records should be memorialized in the Veteran's VA claims file. If the records cannot be located, a formal finding of unavailability should be associated with the Veteran's claims file. 2. Thereafter, schedule the Veteran for an examination with an appropriate VA medical professional to determine the nature and etiology of any current right knee disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. The examiner must specifically note on the VA examination report whether the Veteran's VA claims file, to include a copy of this remand, and any electronic records, were reviewed in connection with this examination. Thereafter, the examiner must address the following: a. Provide a diagnosis for any right knee disability present at any point during the appeal period (January 2011 to present). The examiner's attention is directed to a February 2014 private DBQ which included a diagnosis of chondromalacia patella. b. For any diagnosis provided, state whether the disability at least as likely as not (50 percent or greater probability) arose during, was caused by, or is otherwise related to any incident of active military service. The examiner's attention is directed to the Veteran's competent statements at the Board hearing that his knee twisted and buckled when he was onboard a ship during military service, and that he was treated during service several times where ice and use of a bandage was recommended. The December 1974 separation examination also includes a notation in the Veteran's reported medical history of swollen or painful joint. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. Thereafter, review the requested medical opinion to ensure responsiveness to, and compliance with, the directives of this remand and if not, implement corrective procedures. 4. After completing the above directives, undertake any further development deemed appropriate and then readjudicate the claim for service connection for a right knee disability in light of all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant 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 2014). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs