Citation Nr: 1520806	
Decision Date: 05/14/15    Archive Date: 05/26/15

DOCKET NO.  13-21 956	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability.

2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a right knee disability.

3. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disability.

4. Entitlement to service connection for a left knee disability.

5. Entitlement to service connection for a right knee disability.

6. Entitlement to service connection for a back disability.

7. Entitlement to service connection for a right heel disability.



REPRESENTATION

Veteran represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

M. M. Olson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1984 to October 1985.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in September 2009 and September 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In a July 2013 statement, the Veteran requested a Board video conference hearing.  However, he indicated in an April 2014 written statement that he wished to cancel the hearing.  Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the record.  See 38 C.F.R. § 20.704 (2014).

In an October 2014 claim, the Veteran raised the issues of entitlement to service connection for a sleep disability, hearing loss, tinnitus, and migraines.  As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The issues of entitlement to service connection for a left knee disability, right knee disability, back disability, and right heel disability, as well as the claim to reopen the issue of entitlement to service connection for an acquired psychiatric disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. In a June 1988 rating decision, the RO denied the claims of entitlement to service connection for a left knee disability and a right knee disability, the Veteran did not perfect an appeal of that decision in a timely manner, and no new and material evidence was submitted within the appeal period.

2. Evidence received since the time of the June 1988 rating decision raises the reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for a left knee disability and a right knee disability.


CONCLUSIONS OF LAW

1. The June 1988 rating decision is final.  38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1987); currently, 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).

2. Evidence submitted to reopen the claims of entitlement to service connection for a left knee disability and a right knee disability is new and material, and the claims are reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants the claims to reopen the issues of entitlement to service connection for a left knee disability and a right knee disability.  As this constitutes a complete grant of the claims decided herein, no discussion of VA's duty to notify or assist is necessary.

Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303 (2014).  Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. § 1111 (West 2014).  This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted.  

Pertinent procedural regulations provide that "[n]othing in [38 U.S.C.A. § 5103A] shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in [38 U.S.C.A. § 5108]."  38 U.S.C.A. § 5103A(f) (West 2014).  Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim.  38 U.S.C.A. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996).  New evidence means existing evidence not previously submitted to VA.  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).  

In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim.  In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  In Elkins v. West, 12 Vet. App. 209 (1999), the Court of Appeals for Veterans Claims (Court) held the Board must first determine whether the claimant has presented new and material evidence under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108.  Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999).  The Court also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  

Here, the Veteran did not appeal the denial of the claims of entitlement to service connection for a left knee disability and a right knee disability following the June 1988 rating decision.  Thus, it is final.  38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1987); currently, 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014).  As the June 1988 rating decision is the last final disallowance with respect to these claims, the Board must review all of the evidence submitted since then to determine whether the Veteran's claims should be reopened and re-adjudicated on a de novo basis.

In the June 1988 rating decision, the RO denied the Veteran's service connection for a left knee disability because the evidence indicated that the Veteran had a left knee disability that pre-existed active duty and was not aggravated by active duty.  In addition, the RO denied service connection for a right knee disability because the evidence did not reflect an in-service injury or current disability for service connection purposes.  Evidence submitted and obtained since the June 1988 rating decision includes private treatment records and lay evidence.  In particular, the Veteran reported in his September 2008 claim that he had experienced swollen, painful joints during service and that physicians had diagnosed chronic arthritis at that time.  He also indicated that he had experienced chronic knee pain since active duty.  Additionally, an April 2010 private treatment record reflects diagnoses of osteoarthritis of the left knee and right knee.  Upon review, the Board finds this evidence is both new and material evidence sufficient to reopen the Veteran's claims.  The evidence is new as it had not been previously considered by VA, and the evidence is "material" because it relates to an unestablished fact necessary to substantiate the underlying service connection claims.  Specifically, it addresses whether current left knee and right knee disabilities had their onset during active duty.  As a result, the Board finds the evidence raises a reasonably possibility of substantiating the Veteran's claims.  38 C.F.R. § 3.156(a).  As the credibility of new evidence is generally presumed, the Veteran's claims of entitlement to service connection for a left knee disability and right knee disability are reopened.  Justus, 3 Vet. App. at 512-13.


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened, and, to that extent, the appeal is granted.

New and material evidence having been submitted, the claim of entitlement to service connection for a right knee disability is reopened, and, to that extent, the appeal is granted.


REMAND

Left Knee Disability, Right Knee Disability 

The Veteran underwent VA examination in March 1988.  The VA examiner diagnosed arthralgia of the right knee and left knee and noted that X-ray examination of both knees was negative for any current findings.  A January 2010 X-ray examination of the left knee revealed mild osteoarthritis in the medial compartment, and an April 2010 private treatment record indicates that X-ray examination of the right knee also revealed degenerative changes consistent with osteoarthritis.  In light of this new evidence, the Board finds remand is warranted to obtain an additional VA examination and opinion to determine whether any left knee disability clearly and unmistakably pre-existed service and was not aggravated by active duty as well as whether any current knee disability is otherwise related to active duty.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Back Disability, Right Heel Disability

The record does not show that a VA examination was performed in connection with the Veteran's claims of entitlement to service connection for a back disability and right heel disability.  Generally, a VA medical examination is required for a service connection claim only when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in-service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

With respect to a back disability, a July 1985 report of medical history shows the Veteran reported a history of recurrent back pain, and a March 1999 private treatment record reflects diagnoses of lumbar degenerative disc disease and spondylosis.  In addition, the Veteran asserts that he has experienced chronic low back pain since active duty.  See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge).  Similarly, service treatment records dated in July 1985 and August 1985 reflect the Veteran's reports of pain in both heels, and private treatment records dated in April 2009 and January 2010 indicate that the Veteran's back pain radiated bilaterally to his feet.  The Veteran contends that he has experienced right heel pain since active duty.  Based on this evidence, the Board finds that remand for a VA examination is warranted in order to ascertain whether any current back disability and/or right heel disability is etiologically related to active duty.  38 U.S.C.A. § 5103A(d)(2) (West 2014); 38 C.F.R. § 3.159(c)(4)(i) (2014); McLendon, 20 Vet. App. at 83. 

Acquired Psychiatric Disability

In September 2014, the RO denied the claim to reopen the issue of entitlement to service connection for an acquired psychiatric disability.  In October 2014, the Veteran submitted a timely Notice of Disagreement with respect to this issue.  The filing of a Notice of Disagreement initiates the appeal process.  See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995).  As the record does not reflect that the RO has issued a Statement of the Case in connection with this issue, remand is required so that the Veteran may be issued a Statement of the Case.  See Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for an examination to determine the nature and etiology of any current left knee disability, right knee disability, back disability, and right heel disability.  The claims file and a copy of this Remand should be provided to the examiner in conjunction with the examination.  All necessary tests should be conducted.  First, based on the physical examination and review of the evidence, to include the Veteran's service and post-service treatment records, and with consideration of the Veteran's statements regarding his symptomatology during and since service, the examiner should provide an opinion as to whether it is clear and unmistakable (obvious and manifest) that any left knee disability diagnosed pre-existed active duty.  If it is found that a left knee disability pre-existed active duty, the examiner should identify the evidence upon which this opinion is based.  The examiner should then determine if the left knee disability worsened in service and, if so, the examiner should then provide an opinion as to whether it is clear and unmistakable (obvious and manifest) that a pre-existing left knee disability, if found, was not aggravated during active duty, and the examiner should identify the evidence upon which this opinion is based.  Aggravation is defined as a permanent worsening beyond the naturally progression of the disease or disability.  In other words, is it clear and unmistakable that any worsening was due to the natural progression of the disease?

If the examiner determines that a left knee disability did not clearly and unmistakably pre-exist service, or the evidence is not clear and unmistakable that it was not aggravated by service, then the examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any left knee disability began in service, was caused by service, or is otherwise related to service.  

The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current right knee disability, back disability, and right heel disability, if diagnosed, began in service, was caused by service, or is otherwise related to service.

In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility."  Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

A complete rationale should be provided for any opinion or conclusion expressed.

2.  Issue a Statement of the Case and notify the Veteran of his appellate rights with respect to the claim to reopen the issue of entitlement to service connection for an acquired psychiatric disability.  38 C.F.R. § 19.26 (2014).  In the notice and Statement of the Case, remind the Veteran and his representative that to vest the Board with jurisdiction over this issue, a timely substantive appeal must be filed.  38 C.F.R. § 20.202 (2014).

3.  Then, re-adjudicate the claims of entitlement to service connection for a left knee disability, right knee disability, back disability, and right heel disability.  If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case.  After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board for further appellate review.

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 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).







______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs