Citation Nr: 1605362 Decision Date: 02/11/16 Archive Date: 02/18/16 DOCKET NO. 14-24 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a bilateral knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1981 to February 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the VA Regional Office (RO) in Detroit, Michigan. As discussed below, the Board is reopening the Veteran's claim. The underlying service connection issue being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By an unappealed May 1996 rating decision, the RO denied service connection for a bilateral knee disorder on the basis that there was no evidence showing a chronic bilateral knee disability. 2. Evidence received after the May 1996 denial relates to unestablished facts necessary to substantiate the claim of service connection for a bilateral knee disorder and raises a reasonable possibility of substantiating the underlying claim. CONCLUSIONS OF LAW 1. The RO's May 1996 denial of service connection for a bilateral knee disorder is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2015). 2. Evidence received since the final May 1996 rating decision is new and material. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board is reopening the Veteran's claim and remanding the underlying service connection issue, no discussion of VA's duties to notify and assist is necessary. Service connection for a bilateral knee disorder was denied in May 1996 because the evidence did not show a chronic bilateral knee disability. After receiving notice of the May 1996 decision, the Veteran did appeal the denial of that issue. Later, however, he applied to have this claim reopened. A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC). 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2015). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. 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. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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). Here, relevant evidence of record at the time of the May 1996 rating decision consisted of the Veteran's service treatment records (STRs). His STRs showed various knee complaints. The first complaint, in October 1986, shows that the Veteran complained of knee problems. He reported left knee pain on and off; the diagnosis was knee pain. The Veteran injured his knees (mainly left knee) in a motorcycle accident in July 1987. He was diagnosed with contused knees. A January 1988 record shows that the Veteran reported a right knee injury four days ago after two people fell on his knee. The Veteran's December 1995 separation examination revealed clinically normal lower extremities; no bilateral knee disorder was diagnosed on examination. In his report of medical history, the Veteran denied symptoms such as arthritis, rheumatism, or bursitis. He answered yes to swollen or painful joints and bone, joint, or other deformity, and that he did not know about "trick" or locked knee. He reported that his knees periodically swelled, recurring approximately eight to ten years. An additional statement, dated the day after the separation examination, shows that the Veteran reported inuring both knees and that he had a contusion in 1988 when he fell off a motorcycle. The record shows a diagnosis of osteoarthritis; there are no records of X-ray reports confirming such diagnosis. There were no post-service medical records showing a diagnosis of a current chronic bilateral knee disorder. Accordingly, at the time of the denial in May 1996, the claims folder contained no competent evidence that the Veteran had a chronic bilateral knee disorder. Thus, the RO, in May 1996, denied service connection for that issue. The Veteran did not appeal the RO's decision, and that denial became final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104, 20.200, 20.302, 20.1103 (2015). In reaching the conclusion that that decision is final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond, 659 F.3d 1362. Here, no additional evidence pertinent to the issue of service connection for a bilateral knee disorder was received prior to the expiration of the appeal period. The May 1996 rating decision is thus final. The relevant evidence received since the denial consists of post-service treatment records, a VA examination in October 2011 with an August 2014 addendum, and the Veteran's contentions. Treatment records in February 2000 and July 2001 show a diagnosis of arthritis. An August 2010 VA record shows that the Veteran was diagnosed with degenerative joint disease. At the VA examination, the Veteran was diagnosed with a meniscus tear; a negative nexus opinion was provided. The examiner again provided a negative opinion in the August 2014 addendum. The evidence of record obtained since the May 1996 rating decision, particularly the examination and treatment records, shows a current diagnosis of different bilateral knee disorders. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claim of service connection for a bilateral knee disorder. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. ORDER New and material evidence having been received, the claim for service connection for a bilateral knee disorder is reopened. REMAND Regrettably, a remand is necessary for the underlying service connection issue. A review of the evidence shows that the Veteran filed for disability benefits from the Social Security Administration (SSA) based, in part, on knee pain. As the Veteran's SSA records are therefore relevant to the issue on appeal, a remand is necessary to obtain those records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder the SSA records pertaining to the Veteran's claim for benefits, to include the medical records used in support of the application. All attempts to obtain these records should be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are Federal records, if they cannot be located or no such records exist, the Veteran should be notified in writing. 2. After obtaining the appropriate release of information forms where necessary, procure records of treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the Ann Arbor VA Medical Center. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 3. Then, readjudicate the issue remaining on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs