Citation Nr: 1526229 Decision Date: 06/19/15 Archive Date: 06/26/15 DOCKET NO. 13-26 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from July 1979 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2015, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record in the Veterans Benefits Management System (VBMS). Although the RO indicated the claim stemmed only from a September 2012 rating decision, the Board notes that the Veteran submitted additional medical evidence in support of his claim in May 2012, within one year of the April 2012 rating decision noted above. Applicable regulations provide that evidence received within the one-year period prior to a rating decision becoming final is to be considered as having been received in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2014). In such situations, the applicable rating action will not become final, and any subsequent decision based on such evidence will effectively be considered as part of the original claim. Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). As such, the April 2012 rating decision did not become final. Accordingly, the claim on appeal stems from that April 2012 rating decision. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). At the April 2015 hearing, subsequent to the RO's September 2013 statement of the case (SOC), the Veteran submitted medical research in support of his claim. The Veteran's representative waived the RO's initial consideration of this evidence on the record at that hearing, allowing the Board's initial review of this new evidence. 38 C.F.R. § 20.1304 (2014). This case consists entirely of documents in VBMS. The Board has reviewed all relevant documents in VBMS. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. Virtual VA includes the most recent treatment records from the Jackson VA Medical Center (VAMC). However, the RO considered these records in the September 2013 SOC. All other documents in Virtual VA are duplicative of those in VBMS. The underlying merits of the claim of entitlement to service connection for a right knee disorder are addressed in the REMAND portion of the decision below and the issue is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The claim of entitlement to service connection for a right knee disorder was denied in an April 2009 rating decision. The Veteran did not appeal that rating decision or submit new and material evidence within one year. 2. The evidence received since the April 2009 rating decision is not cumulative or redundant of the evidence of record at the time for the prior denial, and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The April 2009 rating decision denying service connection for a right knee disorder is final. 38 U.S.C.A. §§ 7105(b)(1), 7105(c), 7105(d)(3) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2014). 2. Evidence received since the April 2009 denial is new and material, and the claim for service connection for a right knee disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In the decision below, the Board has reopened Veteran's claim of entitlement to service connection for a right knee disorder. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the Veteran has resulted. In an April 2009 rating decision, the RO denied the Veteran's claim for service connection for a right knee disorder as secondary to a left knee disorder. He did not appeal that rating decision, or submit new and material evidence, and it is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.302, 20.1103. The Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final decision. 38 U.S.C.A. § 5108, 7105. The RO declined to reopen this claim in the April 2012 rating decision on appeal. The Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board must preliminarily decide that new and material evidence has been presented in a case, before addressing the merits of the claims. Butler v. Brown, 9 Vet. App. 167, 171 (1996). Therefore, the Board must consider the question of whether new and material evidence has been received. New evidence means evidence not previously submitted to agency decision makers. Material evidence means 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the new evidence is to 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When making a determination on whether the submitted evidence meets the definition of new and material evidence, the Board takes cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim, applying the concepts derived from the VCAA. Shade, 24 Vet. App. at 118. Moreover, the Veteran need not present evidence as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. At the time of the April 2009 rating decision, the evidence of record consisted of the Veteran's service treatment records, the Jackson VAMC treatment records, and a February 2009 VA examination. The Jackson VAMC treatment records reflected complaints of right knee pain dating back to July 1997. The Jackson VAMC further included a June 2004 MRI showing minimal degenerative changes in the right knee, an August 2008 X-ray showing subtle degenerative changes, and a February 2009 MRI showing ganglion cyst. The February 2009 VA examiner diagnosed mild degenerative joint disease, and offered an opinion finding it unlikely that favoring one extremity could result in an injury to the opposite lower extremity. The RO denied the claim in the April 2009 rating decision, citing the VA examination and VA treatment records as showing no relationship between the Veteran's right knee disorder and his service-connected left knee disorder. The RO also found no evidence of arthritis within one year of the Veteran's 1982 separation from service. Of record after the April 2009 rating decision are more recent Jackson VAMC treatment records, and VA examinations dated in October 2011 and April 2012. Also newly submitted were May 2012 statements from Jackson VAMC orthopedists, Dr. LM and Dr. LL. At the hearing in April 2015, the Veteran submitted medical research. The more recent Jackson VAMC treatment records include a June 2012 MRI showing lateral meniscal tear, chondral lesion, mild degenerative osteophytes, and ganglion cyst of the right knee. The April 2012 VA examiner offered an opinion attributing the Veteran's right knee degenerative joint disease to wear and tear that occurs with time and obesity. Dr. LM and Dr. LL each indicated that the Veteran's right knee arthrosis is due to the prolonged use of an altered gait, and undue wear on the right knee caused by compensating to support his body weight on that side as opposed to the service-connected left side. In response, the RO obtained a supplemental opinion in September 2012. That examiner offered that there is no data to support the theory that favoring one leg injures the opposite lower extremity, and cited a lack of accepted medical studies in the medical literature supporting that theory. As discussed above, the Veteran submitted research supporting the conclusions of Dr. LM and Dr. LL at the April 2015 Travel Board Hearing. The Board finds that new and material evidence has been submitted. The statements by Dr. LM and Dr. LL, as well as the research submitted by the Veteran at the April 2015 Travel Board Hearing, are new, as they were not previously submitted. They are also material, as they relate to the missing element of a relationship between the Veteran's right knee disorder and his service-connected left knee disorder. 38 C.F.R. § 3.156; Shade, 24 Vet. App. at 117. Accordingly, the Board concludes that new and material evidence has been presented to reopen the Veteran's previously denied claim for service connection for a right knee disorder. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the claim can be addressed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a right knee disorder is reopened, and to this extent only, the appeal is granted. REMAND Initially, the Board notes that the April 2012 VCAA notice addressed the requirement for new and material evidence to reopen this claim, but failed to include information as the evidence necessary to substantiate the claim of service-connection for a right knee disorder on a secondary basis. On remand, the AOJ should provide the Veteran with corrective VCAA. Remand is also required for a new VA examination. Although the February 2009, April 2012, and September 2012 VA examiners have offered opinions, their reports fail to address the longstanding nature of the Veteran's service-connected left knee disorder, and therefore the longstanding effect that this has had on his right knee. For example, an April 1996 VA examiner noted the Veteran's limp favoring his left knee, and the Jackson VAMC treatment records reflect his complaints of right knee pain as early as July 1997. The February 2009 VA examiner noted the Veteran's complaint of right knee pain in July 2004 subsequent to a hyperextension injury. However, the record includes a June 2004 MRI, prior to that July 2004 hyperextension injury, showing degenerative fraying of the menisci. The September 2012 supplemental VA opinion noted that it is more likely that the degenerative changes would manifest themselves over time, but failed to discuss the progression of the Veteran's minimal degenerative changes as shown on the June 2004 MRI to the moderate degenerative joint disease diagnosed by Dr. LM in January 2012 based on a review of X-rays. Unfortunately, neither Dr. LM nor Dr. LL addressed this evidence of record in their opinions. Therefore, remand is required for a new VA examination to obtain an opinion. While on remand, the AOJ should also obtain any outstanding Jackson VAMC treatment records. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter in connection with his claim of entitlement to secondary service connection for a right knee disorder. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; and, (3) inform him about the information and evidence he is expected to provide. 2. Contact the appropriate VA Medical Center and obtain and associate with the paper or virtual claims file all outstanding records of treatment, including records from the Jackson VAMC for treatment since June 2013. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. After providing the Veteran VCAA notice and obtaining any outstanding VA treatment records, provide the Veteran an appropriate examination, with a different examiner than those who provided the April 2012 and September 2012 opinions, to determine the etiology of any right knee disorder. The claims folder, including a copy of this remand, must be made available to the examiner. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale provided for that conclusion. The examiner must first provide an opinion regarding each currently diagnosed right knee disorder. Based on the medical findings and a review of the claims folder, the examiner must opine whether each of the diagnosed knee disorders, is at least as likely as not (50 percent or greater probability) causally or etiologically related to the Veteran's service. The examiner must also opine whether it is as likely as not (50 percent or greater probability) that each diagnosed right knee disorder is caused or aggravated by the Veteran's service connected left knee disorder, to include an altered gait. In providing these opinions, the examiner must address the medical evidence of record, including: the April 1996 VA examination report recording the Veteran's limp favoring the left knee; the Jackson VAMC treatment records reflecting his complaints of right knee pain as early as July 1997; the June 2004 MRI showing degenerative fraying of the menisci; the May 2012 statements by Dr. LM and Dr. LL; the June 2012 MRI showing lateral meniscal tear, chondral lesion, mild degenerative osteophytes, and ganglion cyst of the right knee; the research submitted by the Veteran at the April 2015 Travel Board Hearing; and any other relevant medical literature. 4. After the requested development has been completed, readjudicate the merits of the claims. If the benefits sought on appeal remain denied, furnish the Appellant and his representative a supplemental statement of the case and a reasonable opportunity to respond before returning the case to the Board for further review. The Veteran 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs