Citation Nr: 1547965 Decision Date: 11/13/15 Archive Date: 11/25/15 DOCKET NO. 12- 14 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for arthrofibrosis of the left knee, status post total knee replacement. 2. Entitlement to service connection for arthrofibrosis of the left knee, status post total knee replacement, to include as secondary to service connected disabilities. REPRESENTATION Appellant represented by: Carol Avard, Attorney at Law ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to July 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In January 2014, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to adjudicate the issue of whether there was CUE in past VA decisions that denied entitlement to service connection for arthrofibrosis of the left knee. The action specified in the January 2014 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In April 2015, the RO denied the Veteran's CUE claim. It is unclear from the record whether the Veteran intends to appeal this issue to the Board, but the issue is not presently certified for appellate review and the Board does not have jurisdiction over the matter at this time. FINDINGS OF FACT 1. A January 1997 RO decision denied entitlement to service connection for a left knee disability; the Veteran did not perfect an appeal or submit new and material evidence within one year of the decision. 2. A March 2002 RO decision again denied entitlement to service connection for a left knee disability; the Veteran did not perfect an appeal or submit new and material evidence within one year of the decision. 3. Evidence received since the March 2002 RO decision is new and material, the Veteran's claim is reopened and Veteran's left knee condition is related to service or his current service-connected disabilities. CONCLUSIONS OF LAW 1. The February 1997 and March 2002 RO decisions that denied entitlement to service connection for a left knee disability are final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been received since the March 2002 RO decisions, and the Veteran's claim for 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). 3. Entitlement to service connection for a left knee disability is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran original claim for entitlement to service connection for a left knee disability was denied in a January 1997 RO decision; the Veteran did not perfect an appeal. A new claim for a left knee disability was again denied by the RO in a March 2002 RO decision and the Veteran did not appeal. The instant case comes before the Board from appeal of a June 2009 RO decision that denied the Veteran's petition to reopen his previously denied claim for a left knee disability. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2014). However, 38 U.S.C.A. § 5108 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. Hence, before reaching the issue of whether service connection is warranted, the Board must first determine whether the claim may be reopened. See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. A. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). New and material evidence means evidence not previously submitted to agency decision makers which is neither cumulative nor redundant, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). The RO denied the appellant's prior claim because it concluded there was no evidence that the Veteran's left knee disability had onset in service or was caused or aggravated by the Veteran's active military service, to include his service connected disabilities. Thus, for evidence in this case to be considered new and material, it must show that the Veteran's left knee disability is related to his active military service. A May 2009 VA Primary Care treatment record includes that notation "DJD bilateral knees related to injuries." It is unclear whether this in an expression of a medical opinion by the signatory, Dr. M.R., that the Veteran's left knee disability is related to service, or is simply a record of the Veteran's unsubstantiated lay opinion. However, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. Accordingly, the Board finds the above evidence new and material, and the Veteran's prior claim is reopened. The Veteran is seeking entitlement to service connection for arthrofibrosis of the left knee, which he has argued was caused or permanently aggravated by his service connected disabilities, including right knee, hip, and ankle disabilities. There is conflicting evidence of record regarding the etiology of the Veteran's claimed left knee disability. In February 1996, a private physician, Dr. D.R., noted that the Veteran was at "high risk for progressive degenerative joint disease involving the left lower extremity joints due to asymmetry, musculoskeletal imbalance, and increased stress load left lower extremity joints." In March 1996, a VA examiner agreed that the Veteran was at risk of left knee degenerative joint disease, but never explicitly opined whether the Veteran had a current left knee disability related to his active military service. A February 2002 VA medical opinion was also inconclusive, with the examiner concluding that it was difficult to determine whether there was a relationship between the Veteran's current left knee disability and service, since his disability did not manifest until some years after his separation from service. Most recently, in May 2009, the Veteran's VA primary care physician, Dr. M.R stated that the Veteran has "DJD bilateral knees related to injuries." After review of the above, the Board finds that the evidence is in equipoise that the Veteran's left knee disability was caused or aggravated by his service-connected disabilities. Therefore, service connection for a left knee disability is warranted. ORDER New and material evidence having been received, the Veteran's previously denied claim for entitlement to service connection for arthrofibrosis of the left knee, status post total knee replacement, is reopened. Service connection for a left knee disability is granted. ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs