Citation Nr: 1536224	
Decision Date: 08/25/15    Archive Date: 08/31/15

DOCKET NO.  13-15 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for a right hip disability.

2.  Entitlement to service connection for a left hip disability.

3.  Entitlement to service connection for a right knee disability

4.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, and if so, whether service connection is warranted.

5.  Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disability.


REPRESENTATION

Veteran represented by:	Jacques P. DePlois, Attorney 


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1971 to November 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2009 and May 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  In the October 2009 decision, the RO, in relevant part, denied entitlement to service connection for right and left hip disabilities.  In the May 2012 decision, the RO, denied entitlement to service connection for right knee arthralgia and entitlement to a TDIU, and declined to reopen a previously denied claim of entitlement to service connection for left knee arthralgia.  

The Veteran requested a Board hearing in his May 2013 VA Form 9; however, the hearing request was withdrawn in April 2015.  See 38 C.F.R. § 20.704(e) (2015).

The issues of entitlement to service connection for bilateral hip and knee disabilities and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required on his part.


FINDINGS OF FACT

1.  Entitlement to service connection for a left knee condition was denied in a January 2004 rating decision.  The Veteran did not submit a notice of disagreement and no new and material evidence was received within one year of the rating decision.

2.  Evidence received since the January 2004 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for a left knee disability.


CONCLUSIONS OF LAW

1.  The January 2004 rating decision that denied entitlement to service connection for a left knee condition is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1103 (2015).

2.  Evidence received since the January 2004 rating decision is new and material; and the claim of entitlement to service connection for a left knee disability is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection for a left knee condition was denied in a January 2004 rating decision.  The Veteran did not appeal the rating decision, and no additional evidence relevant to the claim was associated with the claims file within one year of issuance of the rating decision.  Cf. 38 C.F.R. § 3.156(b) (2015).  The January 2004 rating decision is, therefore, final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

A previously denied claim may be reopened by submission of new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  New and material evidence cannot be cumulative or 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.  

When determining whether evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  

At the time of the January 2004 rating decision, evidence relevant to the left knee disability claim included the Veteran's service treatment records (STRs), his August 2003 claim, and an October 2003 general VA examination report.  The basis for the denial was the absence of evidence of left knee injury during service.

Relevant evidence obtained since the January 2004 rating decision includes VA treatment records dated through April 2013, showing ongoing complaints of knee pain and diagnoses of knee arthralgia, and apparent arthritis; a January 2013 VA examination report, diagnosing a left knee superficial laceration repair; and statements from the Veteran dated in August 2011, detailing his left knee injury when the knee was punctured, and his belief that his knee disabilities also developed due to strenuous physical duties during service, including during confirmed operation of a 290-M tractor.

This new evidence was not previously submitted, relates to unestablished facts necessary to substantiate this claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the service connection claim for a left knee disability.  See Shade.  Specifically, the new evidence shows that the Veteran has current left knee diagnoses, including a residual scar, and details his contentions as to how current left knee disability may have developed, including by means of the previously alleged injury.  The new evidence, therefore, is new and material, and the claim of entitlement to service connection for a left knee disability is reopened.


ORDER

The claim of entitlement to service connection for a left knee disability is reopened, and to this extent, the claim is granted.


REMAND

The Veteran has contended that current bilateral knee and hip disabilities are the result of strenuous physical duties, including by operating a 290-M tractor for long hours during service, and that he has additional left knee disability due to an injury when his knee was punctured by an ignition switch.  He has pointed out that a January 1975 letter of appreciation, included in his service personnel records, specifically recognized his willingness to work hard and long hours as a 290-M operator.  In a January 2013 VA examination report, however, a VA examiner did not consider the Veteran's contentions; but rather, relied on an absence of noted treatment for hip and knee disabilities in the Veteran's treatment records as a basis for providing a negative opinion.  Cf. Dalton v. Nicholson, 21 Vet. App. 23 (2007).  Remand for a new VA examination is warranted.

Additionally, the January 2013 VA examination report noted no findings of degenerative arthritis of either knee, contradicting prior evidence of record.  Clarification is required.  

VA treatment records dated through April 2013 show that the Veteran had requested and was being considered for right hip replacement surgery, with pending treatment.  Records dated since, however, have not been associated with the claims file.  See 38 C.F.R. § 3.159(c) (2014); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

The Veteran's TDIU claim is inextricably intertwined with the service connection claims on appeal.  See Begin v. Derwinski, 3 Vet. App. 257, 258 (1992); Harris v. Derwinski, 1 Vet. App 180, 183 (1991).  Adjudication of that claim is deferred.

Accordingly, these claims are REMANDED for the following action:

1.  Obtain the Veteran's VA treatment records dated since April 2013, to specifically include any records of treatment for right hip disability, including surgery, from indicated facilities.  

2.  Then, schedule the Veteran for a new VA examination of his hips and knees.  The examiner should review the claims file, including this REMAND.  All necessary studies and tests should be conducted.

The examiner should specifically determine if the Veteran suffers from degenerative arthritis of either knee.  If not, the examiner should specifically state whether prior diagnoses indicating arthritis were made in error.

The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current bilateral hip or knee disability, to include arthritis, arthralgia, and residuals of an uncomplicated left knee superficial laceration, had its onset during active service or is related to any in-service disease, event, or injury, to include his credibly reported in-service left knee injury, resulting in a puncture wound, and his noted physically strenuous labor for long hours as a 290-M tractor operator.  

The examiner should also provide an opinion as to whether the claimed hip and knee disabilities, together, would render him unable to secure or follow an occupation paying above the poverty rate and for which his education and experience would qualify him.

The examiner must provide reasons for all opinions, addressing the medical and lay evidence, including the Veteran's credible statements and supporting service personnel records.  

3.  If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return the appeal to the Board, if otherwise in order.

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 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).



______________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs