Citation Nr: 1516959 Decision Date: 04/21/15 Archive Date: 04/24/15 DOCKET NO. 12-35 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the residuals of a right knee injury, to include residual scarring. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1977, and from September 1978 to September 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran is service connected for residuals of a traumatic brain injury to include vertigo. Upon review of this case, however, it is unclear whether the Veteran is seeking entitlement to a "separate and distinct" compensable evaluation for vertigo. Inasmuch as that issue has not been developed or certified for appellate review, it is not for consideration at this time. It is, however, being referred to the RO for clarification, and, if necessary, appropriate action. Finally, for reasons which will become apparent, the appeal as to the issue of entitlement to service connection for the residuals of a right knee injury (other than scarring) on a de novo basis is being REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. In an unappealed rating decision of January 1983, VA denied entitlement to service connection for a right knee disability. 2. Evidence submitted since the time of the RO's January 1983 rating decision denying entitlement to service connection for a right knee disability is neither cumulative nor redundant, and, when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the Veteran's claim. 3. Right knee scarring is the result of a motor vehicle accident or accidents during the Veteran's second period of active military service. CONCLUSIONS OF LAW 1. The January 1983 rating decision denying entitlement to service connection for a right knee disability is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014). 2. Evidence received since the January 1983 rating decision denying entitlement to service connection for a right knee disability is both new and material, and sufficient to reopen the claim. 38 U.S.C.A. §§ 5103, 5103A, 5108 (West 2014); 38 C.F.R. 3.156(a) (2014). 3. Right knee scarring was incurred in active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in April 2009 and January 2010 of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. Currently, there is no evidence that additional records have yet to be requested, or that additional VA examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at a hearing before the undersigned in March 2013, service treatment records, and both VA (including Virtual VA and Veterans Benefits Management System) and private treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection The Veteran seeks entitlement to service connection for the residuals of a right knee injury. In pertinent part, it is contended that, during the Veteran's second period of active military service, he was involved in a motor vehicle accident, as the result of which he sustained right knee injuries. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Notwithstanding the aforementioned, once entitlement to service connection has been denied by a rating decision that decision, absent a timely perfected appeal is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Where a claim for entitlement to service connection has been previously denied, and that decision is final, the claim can be reopened and reconsidered only if new and material evidence has been presented with respect to that claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is considered to be "new if it was not previously submitted to agency decisionmakers. Evidence is "material" if, by itself, or when considered with previous evidence of record, it 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. Id. New evidence may be found to be material if it provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability, even where it will not eventually convince the Board of Veterans Appeals to alter its decision." See Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been submitted, the evidence is generally presumed to be credible. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). During the March 2013 hearing the representative argued that correspondence submitted by the Veteran in February 1983 did, in fact, constitute a Notice of Disagreement with a prior rating decision of January 1983, and that a Statement of the Case was never issued, with the result that the Veteran's claim for service connection for the residuals of a right knee injury has, in fact, remained "open" since that time. A review of the record, however, clearly discloses that the February 1983 correspondence in question did not, in fact, constitute a notice of disagreement. Rather, that correspondence alleged only that a prior November 1982 VA examination was inadequate, and that the Veteran should therefore be afforded an additional VA examination. In response, VA in March 1983 correspondence, which included a notice of procedural and appellate rights, informed the Veteran that his November 1982 VA examination was adequate for rating purposes. Under the circumstances, the Veteran's claim of entitlement to service connection has not remained "open" since his original September 1982 claim. Rather, the Veteran's "reopened" claim of entitlement to service connection for the residuals of a right knee injury dates from April 2009, the date noted in the statement of the case. At the time of the January 1983 rating decision it was noted that a report of the Veteran's hospitalization following his motor vehicle accident in November 1980 was on file. The report states that the Veteran's car struck a parked vehicle, and he was thrown forward injuring a knee on the dashboard. A November 1982 VA examination showed a full range of knee motion bilaterally with no evidence of any medial or lateral instability, and no increase in anterior/posterior mobility. Further examination showed no atrophy on measurement, and no palpable bony abnormalities. Radiographic studies of knees showed no evidence of any fracture, dislocation, or other significant bone or joint changes. Based on such findings, and in the absence of any residual of right knee injury, the RO denied entitlement to service connection for a right knee disability. That determination was adequately supported by and was consistent with the evidence then of record. In the absence of a timely perfected appeal is now final. 38 U.S.C.A. § 7105. Evidence submitted since the time of the January 1983 rating decision, consisting, for the most part, of VA and private treatment records and examination reports, as well as the Veteran's March 2013 testimony before the undersigned is both "new" and "material" as to the issue of service connection for the residuals of right knee injury. More specifically, since the January 1983 rating decision, the Veteran has received continuing treatment, to include multiple surgeries, among them, a total knee replacement, for his claimed right knee disability. Moreover, following an evaluation in April 2013, the Veteran's private physician indicated that the appellant's right knee post-traumatic arthritis was "cause-related to the car accident while performing active duties with the armed services, for which he has undergone medial compartment replacement followed by a total knee replacement." Such evidence, at a minimum, provides a "more complete picture of the circumstances surrounding the origin of the Veteran's injury or disability," and, accordingly, is sufficient to reopen the Veteran's previously-denied claim. Regarding that portion of the Veteran's injury which consists of a laceration scar or scars of the right knee, the Board observes that, while on active duty in November 1980 the Veteran was involved in a rather serious motor vehicle accident, at which time he sustained multiple injuries, to include, a four centimeter laceration just below his right knee on the anterior surface. Significantly, at a November 1982 VA medical examination shortly following his service discharge it was noted that, while in service, the Veteran was involved in a motor vehicle accident, at which time his knees were jammed under the dashboard. According to the examiner, the Veteran exhibited some minor scarring of the anterior aspect of the right patellar area, which scars were neither significant nor adherent. Significantly, during the course of the aforementioned hearing in March 2013, the representative indicated that the Veteran continued to experience problems with scarring in the area of his right patella. Based on the aforementioned, the Board finds that to the extent the Veteran currently experiences residuals of right knee laceration scars those scars at least as likely as not had their origin as the result of the aforementioned motor vehicle accident in November 1980. Accordingly, an award of service connection for laceration scars of the right knee is in order. ORDER New and material evidence having been submitted, the application to reopen a claim of entitlement to service connection for the residuals of a right knee injury is reopened. Entitlement to service connection for a scar or scars as the residual of lacerations to the right knee is granted. REMAND Having determined that new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for the residuals of a right knee injury, the Board turns to a de novo review of all pertinent evidence of record. However, that evidence raises some question as to the exact nature and etiology of the Veteran's current right knee disability. As noted, in November 1980, while in service, the Veteran was involved in a rather serious motor vehicle accident. At that time he clearly injured, among other things, his right knee. While the aforementioned November 1982 VA clinical evaluation of the Veteran's right knee revealed essentially unremarkable findings, since his service discharge the appellant has undergone continuous treatment for his right knee, to include multiple surgeries, among them, a right total knee replacement. As noted, the Veteran's private physician posited in April 2013 a connection between the Veteran's inservice motor vehicle accident and current right knee pathology. However, that opinion appears to have been rendered in the absence of access to the Veteran's claims folder, to include, most importantly, his service medical records. Moreover, since the time of the reopening of his claim in April 2009, the Veteran has yet to be afforded a VA examination for the purpose of determining the nature and etiology of his claimed right knee pathology. Such an examination would be appropriate prior to a final adjudication of the Veteran's current claim. Accordingly, in light of the aforementioned, the case is REMANDED to the AOJ for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to April 2013, the date of the most recent medical evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. Thereafter, the Veteran should be afforded a VA orthopedic examination in order to address the exact nature and etiology of his current right knee disability. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, the examiner must opine whether it is at least as likely as not that the Veteran's right knee pathology, excluding right knee scarring is related to the Veteran's active military service, to include the aforementioned inservice motor vehicle accident in November 1980. The opinion must address whether it is at least as likely as not that any postservice surgical residuals, to include residuals of a total knee replacement, are related to service. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The examiner must specify in his/her report that the claims file, as well as the Veteran's Virtual VA and Veterans Benefits Management System electronic records, have been reviewed. 3. The AOJ should then review the aforementioned report to ensure that it is in complete compliance with this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA and the Veterans Benefits Management System, as appropriate. If the report is deficient in any manner, the AOJ must implement corrective procedures. 4. The AOJ should then readjudicate the Veteran's claim for service connection for the residuals of right knee injury. Should the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a supplemental statement of the case which contains notice of all relevant action taken on the claim for benefits since October 2012. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs