Citation Nr: 1613696	
Decision Date: 04/05/16    Archive Date: 04/13/16

DOCKET NO.  11-06 294	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left leg and knee disability.

2.  Entitlement to service connection for a left leg and knee disability.

3.  Entitlement to service connection for a back disability, to include as secondary to left leg and knee disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C.S. De Leo, Associate Counsel

INTRODUCTION

The Veteran served on active duty from April 1971 to April 1973.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  Jurisdiction over this case was subsequently transferred to the VARO in Montgomery, Alabama.

The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Veterans Benefits Management System (VBMS) and Virtual VA system.

The issues of entitlement to service connection for left leg and knee disability and a back disability, to include as secondary to left leg and knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an unappealed September 1997 rating decision, the RO denied entitlement to service connection for a left leg and knee injury.  New and material evidence was not received within the one year appeal period.

2.  Evidence received since the September 1997 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a left leg and knee injury and raises a reasonable possibility of substantiating the claim.





CONCLUSIONS OF LAW

1.  The RO's September 1997 denial of service connection for left leg and knee disability is final.  38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.156(b), 20.1103 (2015).

2.  Evidence received since the September 1997 decision is new and material and the criteria for reopening of the claim for entitlement to service connection for left leg and knee disability have therefore been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Request to Reopen

Left Leg and Knee Disability

Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed.  38 U.S.C.A. § 7105(c).  

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, VA will reopen the claim and review it on the merits.  The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In a September 1997 rating decision, the RO denied the Veteran's claim of entitlement to service connection for left leg and knee injury on the basis that "the condition was considered resolved with appropriate treatment with no chronic condition shown in service medical records."  It was also noted that the Veteran's service treatment records indicate that he received treatment for a leg injury in service to include a pulled muscle in the left calf.  Additionally, it was noted that he did not report to the scheduled VA examination.  The Veteran was notified of the denial in a letter later that month but did not appeal, and did not submit new and material evidence within the one year appeal period.  The denial therefore became final.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103.

The evidence received since the September 1997 final decision includes private treatment records from Dr. W.E.R. noting treatment of the left leg and back pain.  Additionally, the Veteran submitted a timely notice of disagreement with the March 2009 decision denying entitlement to service connection for left leg and knee injury stating that he injured his left leg and knee in 1972 while serving on active duty in Japan.  He also indicated that his back disability was due to the left leg and knee disorder.  See July 2008 VA Form 21-4138; April 2009 VA Form 21-4138.  The Veteran's statements with respect to his symptoms are competent evidence within his personal experience.  Lay evidence may be competent on a variety of matters concerning the nature and cause of disability.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The statements are also presumed credible for purposes of reopening.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  By stating that his back disability is due to his left leg and knee disorder, the Veteran implicitly indicated that the left leg and knee disorder had existed since service, thus reflecting a possible nexus between the current left leg and knee disability and service.

As this evidence relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for left leg and knee disability is warranted.
ORDER

The application to reopen a claim for entitlement to service connection for a left leg and knee disability is granted.


REMAND

In July 2008 and April 2009 statements (VA Form 21-4138), the Veteran asserts that he initially injured his left leg in 1972 in Japan during service, which has caused him to walk with a limp.  According to the Veteran reports, his current back symptoms are secondary to walking with an antalgic gait.  The Veteran also reports that treatment of this injury is documented in his service treatment records (STRs).  See March 2011 VA Form 9.  

A March 5, 1972 STR shows the Veteran was treated for a "soft spot in [the left] leg."  An August 16, 1972 STR shows the Veteran presented with "pain in knee joint."  A January 29, 1973 STR shows the Veteran was treated for a pulled muscle in the left leg.  As the evidence thus indicates that left leg and knee disabilities may be associated with service, and a back disability may be secondary to these conditions, a VA examination as to the etiology of back, left leg and knee disabilities is warranted.  38 U.S.C.A. § 5103A(d).

Additionally, the Veteran alleges service connection for a back disability secondary to his left leg and knee injury.  Resolution of the back disability claim is therefore inextricably intertwined with the claim regarding the left leg and knee injury.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  Remand of the claim for entitlement to service connection for a back disability for additional development to include a VA examination as to its etiology is thus warranted as well.

Additionally, on remand, attempts should also be made to obtain any outstanding treatment records (VA or private) relevant to the Veteran's appeal.  See March 2016 Appellate Brief.  

Finally, the claims file does not include a copy of the Veteran's DD Form 214.  The RO must obtain the Veteran's DD Form 214 and associate it with the claims file.

Accordingly, the claims for entitlement to service connection for left leg and knee disability and a back disability, to include as secondary to left leg and knee disability, are REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding medical records (VA or private) relevant to the Veteran's appeal.  Any additional treatment records identified by the Veteran should be obtained and associated with the claims file.  (Consent to obtain records should be obtained where necessary.)  

2.  Obtain the Veteran's DD 214 and ensure that the document is associated with the claims file.

3.  Then, schedule the Veteran for a VA examination as to the etiology of any back and left leg and knee disabilities.  All necessary tests should be conducted.  The examiner must be provided access to the Veteran's claims file and to all records located on either the Virtual VA or VBMS data bases.

Following the examiner's documented review of the evidence he/she must opine whether it is as least as likely as not (50 percent probability or more) that any back or left leg and knee disability is related to his military service, in particular due to his reported 1972 injury.  

The examiner should also offer an opinion as to whether it at least as likely as not (50 percent probability or more) that any current back disability was either (a) caused or (b) aggravated by the left leg and knee disability.  A complete rationale must accompany any opinion provided.

Although an independent review of the claims file is required, the Board calls the examiner's attention to the following:  the Veteran's March 1972, August 1972, and January 1973 service treatment records documenting treatment of the knee and left leg.  

The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries.  The Veteran's reports must be taken into account in formulating the requested opinions.  

4.  The RO/AMC must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claims.  The consequences for failure to report for a VA examination without good cause may include denial of the claims.  38 C.F.R. §§ 3.158, 3.655 (2015).  In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address.  It should also be indicated whether any notice that was sent was returned as undeliverable.

5.  After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated.  If any benefit sought remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

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 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).



______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs