Citation Nr: 1605140 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 14-25 224 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a bilateral hip disorder. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disorder. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and S. S. ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1946 to July 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). The issues of entitlement to service connection for a bilateral hip disorder, a bilateral knee disorder, and a back disorder are addressed in the Remand portion of the decision below. FINDINGS OF FACT 1. By a rating decision dated August 1978, the RO originally denied claims for service connection for a bilateral knee disorder and a back disorder; the Veteran did not file a substantive appeal with regard to those determinations, nor was any new and material evidence received within the appeal period thereafter. 2. Evidence added to the record since the August 1978 denial, considered in conjunction with the record as a whole, relates to unestablished facts necessary to substantiate the claims for service connection for a bilateral knee disorder and a back disorder and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The August 1978 rating decision, which denied claims of entitlement to service connection for a bilateral knee disorder and a back disorder, is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence has been received since the August 1978 denials for entitlement to service connection for a bilateral knee disorder and a back disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). The Board must determine whether new and material evidence has been presented before it can reopen a claim to readjudicate an issue on its merits. The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. The Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered, regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The Veteran's claims for service connection for a bilateral knee disorder and a back disorder were denied in an August 1978 rating decision. The Veteran did not file a substantive appeal with regard to that decision, nor was any new and material evidence received within the appeal period, and therefore, the August 1978 decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the August 1978 decision, the relevant evidence of record included the Veteran's claim for compensation and his Social Security Administration records. The RO denied the Veteran's claims for service connection for arthralgia of the knees and back, noting that there were no complaints of back pain during service; no rationale was given for the denial of the claim for service connection for the knees. Evidence added to the record since the August 1978 rating decision includes, in pertinent part, the Veteran's testimony at his November 2015 hearing before the Board. The Board finds this evidence constitutes new evidence. It is not cumulative or redundant of the evidence of record at the time of August 1978 final denial of the claims sought to be reopened and has not previously been before VA agency decision makers. The Board also finds this new evidence is material. The Veteran's claims were previously denied because the evidence did not show any relation between his arthralgia of the knees and back and his active duty service. At his hearing before the Board, the Veteran gave further detail about events that occurred during service and his symptoms and treatment following service. As such, the Board finds this newly submitted evidence raises a reasonably possibility of substantiating the claims on appeal and, therefore, the claims are reopened. See Shade, 24 Vet. App. at 118. ORDER New and material evidence having been received, the claim of entitlement to service connection for a bilateral knee disorder is reopened, and to this extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a back disorder is reopened, and to this extent only, the appeal is granted. REMAND As an initial matter, the Veteran's service treatment records have not been associated with the evidence of record. The RO has repeatedly attempted to obtain the Veteran's service treatment records, receiving multiple responses that they were unavailable, as they were destroyed in the 1973 fire at the National Personnel Records Center. In a March 2011 VA Memorandum, the RO made a formal finding regarding the unavailability of the Veteran's service treatment records and sent a letter to the Veteran advising him that his records had been destroyed in a fire and were unavailable. Additionally, the evidence of record demonstrates that the Veteran has been aware of the unavailability of these records for many years. The RO obtained a June 2014 medical opinion regarding the etiology of the Veteran's bilateral knee, bilateral hip, and back disorders. The VA medical professional who provided that opinion found the Veteran's bilateral hip, bilateral knee, and back disorders were "less likely than not (less than 50 percent probability)" due to the Veteran's active duty service reasoning, in part, that the Veteran "required no care for these areas for decades after service." This statement contradicts the new evidence of record as the Veteran has stated he did seek treatment approximately one year after service, that he continued to experience pain following service, and that he was unable to seek medical treatment as often as he would have liked due to financial reasons. As this medical opinion is based, in part, on an inaccurate factual premise, the RO must obtain a new medical opinion. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an incomplete or inaccurate factual premise). Accordingly, the case is remanded for the following action: 1. The RO must obtain and associate with the evidence of record all outstanding VA treatment records from July 2013 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The RO must obtain a new medical opinion from a VA medical professional regarding whether the Veteran's bilateral knee, bilateral hip, and back disorder are related to his military service. If possible, the RO must obtain this opinion from the same medical professional who provided the June 2014 medical opinion. The RO must provide the VA medical professional with the Veteran's electronic claims file for review and the medical professional must be informed that the Veteran's service treatment records are unavailable and that the absence of documentation of treatment in service is not fatal to the Veteran's service connection claims. Specifically, the VA medical professional must review and consider the Veteran's lay statements made at the November 2015 Board hearing that the Veteran injured his back, hips, and knees while carrying a man during a training exercise in service, that he received medical treatment for his injuries during service and within one year of separating from active duty service, and that he has experienced pain in his back, hips, and knees since that event in service. The VA medical professional must also review the Veteran's Social Security Administration records and the Veteran's work history as described therein. Following a review of the evidence of record, to include the Veteran's lay statements, the VA medical professional must provide the following opinions: (a) Whether any diagnosed bilateral knee disorder is due to the Veteran's active duty service, to include as due to carrying a fellow soldier during a training exercise during service. The medical professional must state upon what specific evidence this determination is based. (b) Whether any diagnosed bilateral hip disorder is due to the Veteran's active duty service, to include as due to carrying a fellow soldier during a training exercise during service. The medical professional must state upon what specific evidence this determination is based. (c) Whether any diagnosed back disorder is due to the Veteran's active duty service, to include as due to carrying a fellow soldier during a training exercise during service. The medical professional must state upon what specific evidence this determination is based. A complete rationale for all opinions must be provided and the medical professional must discuss the Veteran's lay statements regarding his symptoms and treatment following active duty service. If the medical professional cannot provide the requested opinions without resorting to speculation, it must be so stated, and the medical professional must provide the reasons why an opinion would require speculation. The medical professional must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the medical professional must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The medical opinions must be reviewed by the RO to ensure that they are in complete compliance with the directives of this remand. If deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, and any additional development deemed necessary, the RO must readjudicate the Veteran's claim. If any benefit on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and be given an adequate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs