Citation Nr: 1537289	
Decision Date: 09/01/15    Archive Date: 09/10/15

DOCKET NO.  11-20 742	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

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

2. Entitlement to service connection for bilateral knee condition.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


ATTORNEY FOR THE BOARD

Brandon A. Williams, Associate Counsel



INTRODUCTION

The Veteran had active military service from March 1965 until February 1976.

These matters come before the Board of Veterans' Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina.

The issue of entitlement to service connection for bilateral knees 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 an unappealed December 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for bilateral knee condition.
 
2. The evidence submitted subsequent to the December 2008 rating decision does relate to an unestablished fact necessary to substantiate the claim for entitlement to service connection for bilateral knee condition.


CONCLUSIONS OF LAW

1. The unappealed December 2008 rating decision which denied service connection for bilateral knee condition is final. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156(a), 3.104(a), 20.302, 20.1103 (2015).
 
2. New and material evidence has been submitted, and the Veteran's claim of entitlement to service connection for bilateral knee condition, is reopened. 38 U.S.C.A. §§ 1154(a), 5108, 7105 (West 2014); 38 C.F.R. § 3.156, 20.302, 20.1103 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants the Veteran's claim to reopen the previous denied claim of entitlement to service connection. Thus, there is no need to discuss whether VA has complied with its duties to notify and assist found at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. § 3.159.

Legal criteria 

New and material evidence

In general, RO decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.200 (2015). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366   (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171   (1996).

"New" evidence is existing evidence not previously submitted to agency decision makers. "Material" evidence is 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 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 determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under § 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993).

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314   (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the appellant in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2014) (eliminating the concept of a well-grounded claim).

Service Connection

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498   (1995), aff'd per curiam, 78 F.3d 604   (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the post service symptoms. Savage v. Gober, 10 Vet.App. 488 (1997).

Analysis

The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

Historically, the Veteran's claim for entitlement to service connection for a bilateral knee condition was denied by the RO in December 2008 because the evidence did not reflect the Veteran had a bilateral knee condition related to service. The Veteran did not appeal the decision and it became final. In April 2010, the Veteran requested that his claim for entitlement to service connection for a bilateral knee condition be reopened. The claim was subsequently denied by the RO in August 2010.

Evidence of record at time of last final denial

At the time of the December 2008 RO denial, the evidence of record consisted of the Veteran's DD 214, the Veteran's lay statements, medical records and correspondence. 

At the time of the last final denial the record did not include a medical opinion in regard to the Veteran's bilateral knee condition.

Evidence of record since the last final denial

The evidence received since the last final denial includes additional VA medical records, rating decisions, and the Veteran's statements.
The claims folder reflects the Veteran has been diagnosed and treated for degenerative joint disease of the knee, bilaterally. (See April 2010 VA medical record). A May 2011 VA medical examination for the spine notes the Veteran experiencing leg weakness in relation to his back condition. The claims folder further reflects that since the last final denial the Veteran has been service connected for intervertebral disc syndrome of the lumbar spine, which has been associated with an in-service motorcycle accident. The Veteran has averred that his service connected back disability has contributed to his bilateral knee condition.

Old and new evidence of record considered as a whole

The Board finds that some of the additional evidence raises a possibility of substantiating the claim for entitlement to service connection for a bilateral knee condition. In this regard, the Board is mindful of the low threshold for reopening a previously denied claim. Shade, 24 Vet. App. at 110.

At the time of the last final denial the Veteran was not service connected for a back condition. The medical records and the Veteran's statements noted above go to the basis of the Veteran's claim for entitlement to service connection for a bilateral knee condition. Thus, the Board finds the medical records, to include the May 2011 VA medical examination, to be new and material.

Accordingly, the Board concludes that evidence has been received which is new and material, and the claim for service connection for a bilateral knee condition, is reopened.


ORDER

New and material evidence has been received to reopen a previously denied claim of service connection for a bilateral knee condition and, to that extent, the claim is granted.





REMAND

Having reopened the Veteran's claim, the Board must now determine whether the reopened claim of entitlement to service connection for a bilateral knee may be granted on the merits, de novo.

The Veteran contends that he has a bilateral knee condition related to service, specifically secondary to his service-connected back disability. The claims file does not reflect that the Veteran has been provided a VA medical examination or medical opinion in regard to his bilateral knee condition. VA's duty to assist requires it to provide an adequate medical examination and/or obtain a medical opinion if the evidence is not sufficient to decide the claim. However, in order for the duty to assist to be triggered, the following must be present: (A) competent lay or medical evidence of a current disability, persistent, or recurrent symptoms of a disability, (B) evidence establishing the Veteran suffered an event, injury, or disease or symptoms of a disease, and (C) evidence indicating that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4)(i). The Board finds that the requirements have been met in order to trigger the VA's duty to assist for the reasons stated below.

The claims folder reflects that the Veteran has a current diagnosis of degenerative disc disease of the knee, bilaterally.  Furthermore, the Veteran contends that his current bilateral knee condition may be associated with an event, injury, or disease during his active military service, to include secondary to his service connected disability.

In this case, without an adequate medical examination and medical opinion in regard the he Veteran's bilateral knee condition, the Board finds the current evidence to be insufficient to decide the claim. Therefore, a VA medical examination and medical opinion is required by VA's duty to assist the Veteran in developing evidence to substantiate his claim to service connection for a bilateral knee condition.



Accordingly, the case is REMANDED for the following action:

1. Request the appellant to identify all medical providers (VA and private) from whom he has received treatment for his bilateral knee condition, and complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for the identified treatment records, for each medical treatment provider identified. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records and associate them with the claims file.

2. After associating all newly acquired records with the claims file schedule the Veteran for a VA medical examination in regard to the claim to service connection for a bilateral knee condition. The clinician is requested to furnish the following opinions: a.) whether it is at least as likely as not (50 percent or greater) that the Veteran has a bilateral knee condition, related to, or aggravated by, his military service and b.) whether it is at least as likely as not (50 percent or greater) that the Veteran has a bilateral knee condition, related to, or aggravated by his service connected back disability. Any opinion should include a complete rationale. The clinician should consider the entire claims file.

3. After undertaking any other development deemed appropriate, the RO should readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative with an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter 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).




______________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs