Citation Nr: 1616925 Decision Date: 04/28/16 Archive Date: 05/04/16 DOCKET NO. 10-44 012A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disability. 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to October 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In July 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge of the Board of Veterans' Appeals (Board). A transcript of this hearing was prepared and associated with the claims file. As a preliminary matter, the Board must address the procedural posture of this case. The Veteran originally claimed entitlement to service connection for a heart disability and a bilateral knee disability in May 2004. These claims were denied in a June 2005 rating decision. The Veteran was notified of this denial in a June 2005 letter. The Veteran did not submit a notice of disagreement within one year of the rating decision notice letter. In July 2007, the Veteran submitted a claim for multiple issues. In relevant part, he requested that VA reopen the claims of entitlement to service connection for heart and bilateral knee disabilities. A March 18, 2008, deferred rating decision directed that the knee and heart claims (along with the other claims that were denied in the June 2005 rating decision) be denied "as duplicate." On March 18, 2008, the RO issued a rating decision that denied claims of entitlement to service connection for a neck disability, peripheral neuropathy of the bilateral upper and lower extremities, and carpal tunnel syndrome. The knee disability was only mentioned to the extent that the Veteran had claimed that his neck disability had been incurred secondary to, or had been aggravated by, a knee disability. The discussion of this theory of entitlement notes that secondary service connection must be denied "because service connection for your knee condition was not established." No mention of the heart disability claim appears anywhere in this rating decision. The RO mailed this decision to the Veteran accompanied by a March 24, 2008, notification letter. This letter explained to the Veteran that service connection could not be granted for the neck, peripheral neuropathy, and carpal tunnel syndrome claims because they were not related to his military service. This letter also notified him that his claims for service connection for a left knee condition, a right knee condition, and a heart condition had previously been denied. It was noted that the Veteran was notified of this decision in a letter dated June 20, 2005. He was notified that he "must furnish new and material evidence before [the RO] may reconsider [his] claim," and he was given the definitions of "new evidence" and "material evidence." In April 2008, VA received a VA Form 21-4138, "Statement in Support of Claim," that the Veteran had entitled "NOTICE OF DISAGREEMENT." He expressed his "WISH TO FILE A NOTICE OF DISAGREEMENT ON THE FOLLOWING ISSUE'S OF THE RECENT VA REGIONAL OFFICE, HOUSTON, TEXAS, DECISION LETTER." He included the "heart condition" and the neck condition "to include as due to knee condition" as the issues for which he was filing a notice of disagreement. A March 2010 deferred rating decision directed that a letter be sent to the Veteran informing him, in relevant part, that the issues of entitlement to service connection for a heart condition and a bilateral knee condition were not valid notice of disagreement issues. It was also to notify him that the April 2008 notice of disagreement was valid for the claims of entitlement to service connection for cervical problems/ degenerative disc disease, peripheral neuropathy of the bilateral upper and lower extremities, and carpal tunnel syndrome. This letter was sent to the Veteran in March 2010. While this letter notified the Veteran of evidence that he may submit to substitute for his missing service treatment records, it did not inform him of any actions on his part that were required in order for his notice of disagreement to be valid with respect to the heart and knee disability claims. The RO issued a statement of the case in October 2010 that addressed the issues that were adjudicated in the March 2008 rating decision, as well as the issues for which the Veteran had been informed in the March 2008 rating decision notification letter would be reconsidered following the submission of new and material evidence. The heart and bilateral knee disability claims fell into this latter category. The adjudicative actions section of the October 2010 statement of the case noted that the Veteran's claim had been considered based on all of the evidence of record on March 18, 2008, that the Veteran had been notified of this decision on March 24, 2008, and that the Veteran's notice of disagreement had been received on April 11, 2008. In November 2010, the Veteran submitted a VA Form 9 substantive appeal on which he limited his appeal to the heart and knee disabilities. A May 2015 deferred rating decision notes that the reopened claim of July 2007 was not properly worked. It disagreed with the instruction from the March 2008 deferred rating decision to deny the claim as duplicate, noting that the Veteran was requesting to reopen his claim. It noted that the Veterans Claims Assistance Act (VCAA) letter of November 2007 "did not contain the WTEMS for new and material (although it contained the paragraphs in the body of the letter)." It further noted that "[w]hen this claim was denied by letter and not rating, both actions were incorrect, because it should not have been denied without proper VCAA." The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2015). The Board will construe the March 2008 notice of decision letter as a denial of the claims to reopen the previously denied claims of entitlement to service connection for a heart disorder and bilateral knee disorder. Also, as the Veteran could not obtain service connection for a neck disorder as secondary to a knee disability without establishing service connection for a knee disability, the Board will find that in the April 2008 notice of disagreement, the Veteran did not knowingly intend to exclude from appellate review his entitlement to service connection for a bilateral knee disorder. As a timely VA Form 9 listing the issues of entitlement to service connection for a heart disorder and bilateral knee disorder was received, the Board finds that the Veteran properly perfected these issues for appellate review. FINDINGS OF FACT 1. In a June 2005 rating decision, the RO denied the Veteran's claims of entitlement to service connection for a heart disorder and bilateral knee disorder; he submitted neither a notice of disagreement nor new and material evidence within one year of the June 2005 notification of this decision. 2. When considered by itself or in connection with the evidence previously assembled, the evidence received since the June 2005 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a heart disorder and bilateral knee disorder. CONCLUSIONS OF LAW 1. New and material evidence has been added to the record since the June 2005 rating decision; thus, the claim of entitlement to service connection for a heart disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). 2. New and material evidence has been added to the record since the June 2005 rating decision; thus, the claim of entitlement to service connection for a bilateral knee disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Public Law No. 106-475, 114 Stat. 2096 (2000), substantially amended the provisions of chapter 51 of title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2014)). In light of the favorable decision herein with respect to whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart disorder and bilateral knee disorder, the Board finds that any deficiencies with respect to satisfying the notice or assistance requirements of the VCAA are moot. II. New and Material Evidence Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2015). A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). For claims filed on and after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a) (2015). The Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further 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. Id. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). The Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). For the purpose of establishing whether new and material evidence has been submitted, the evidence is presumed credible unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted above, the Veteran originally claimed entitlement to service connection for a heart disability and a bilateral knee disability in May 2004. These claims were denied in a June 2005 rating decision. The RO denied the heart claim on the basis that there was no evidence the claimed condition existed, occurred in or was caused by service. The RO denied the left knee claim on the basis that there was no evidence the claimed condition existed, occurred in or was caused by service. The RO denied the right knee claim on the basis that a review of the private treatment records did not show that the condition was caused by military service, and that this condition neither occurred in nor was caused by service. The Veteran was notified of this denial in a June 2005 letter. He submitted neither a notice of disagreement nor new and material evidence within one year of the June 2005 notification of this decision. At the time of the June 2005 rating decision, private medical records dated from 1994 to 2003 show diagnoses of internal derangement of the right knee, degenerative arthritis of the right knee, and meniscus tear. The Veteran also reported that his heart was treated in service in May 1974 at Tuslog Detachment and that his knees were treated in service in February 1973 at Ft. Polk, La. VA treatment records dated in February 2005 were of record. The Veteran's claim to reopen was received in July 2007. Thereafter, VA treatment records dated from February 2005 to September 2010 and private medical evidence dated from 2000 to 2014 were associated with the file. The Veteran presented testimony at the July 2015 Board hearing in which he indicated that he first experienced knee symptoms in basic training and he experienced a flare-up after basic. He was treated at the dispensary twice. He experienced heart problems during his tour in Siniop Turkey for which he was monitored over the weekend in May 1974. He was treated for a knee condition and heart problems by a doctor (around 1977 or 1978), Orange Memorial Hospital, Dr. W.W., Fondren Orthopedic Clinic, and Beaumont Bone and Joint (in 2015). He testified that he first sought treatment at the VA in 2000. The Board finds that the testimony the Veteran provided at the Board hearing provided additional details as to whether the claimed disabilities have been continuous since service. Accordingly, the Board finds that new and material evidence has been submitted to reopen the claim of entitlement to service connection for a heart disorder and bilateral knee disorder. ORDER New and material evidence having been received, the claim of entitlement to service connection for a heart disability is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for a bilateral knee disability is reopened; the appeal is granted to this extent only. REMAND Having reopened the claim of entitlement to service connection for a heart disability and bilateral knee disability, the Board finds it necessary to remand this issue to obtain any outstanding treatment records and to afford the Veteran a VA examination and nexus opinion. The Veteran's service treatment records are unavailable. See September 2010 Formal Finding on the Unavailability of Service Medical Records. The Board recognizes that there is a heightened obligation to assist the appellant in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify the provider(s) of any treatment or evaluation he has received for his heart and knee disabilities since service, to include from a doctor (around 1977 or 1978), Orange Memorial Hospital, Dr. W.W., Fondren Orthopedic Clinic, and Beaumont Bone and Joint, as identified at the July 2015 Board hearing, records of which are not already associated with the claims files, and to provide any releases necessary for VA to secure such records of treatment or evaluation. If any of the above-requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran and his representative must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e) 2. Obtain copies of all of the Veteran's outstanding VA medical records dated beginning in 2000 to 2005 as identified at the July 2015 Board hearing. See Board transcript at page 13. 3. Following completion of the above, schedule the Veteran for an examination to obtain a medical opinion as to whether he has a current heart disability that is related to his period of service. The file must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current heart disability arose during service or is otherwise related to any incident of service. In so opining, the examiner is advised that the Veteran's service treatment records are missing and so should presume that the Veteran was evaluated in service in May 1974 for heart related problems essentially as he has contended. The examiner should provide a rationale for the conclusions reached. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 4. Schedule the Veteran for an examination to obtain a medical opinion as to whether he has a current bilateral knee disability that is related to his period of service. The file must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current bilateral knee disorder arose during service or is otherwise related to any incident of service. In so opining, the examiner is advised that the Veteran's service treatment records are missing and so should presume that the Veteran first experienced knee symptoms in basic training and he experienced a flare-up after basic for which he was treated twice at a dispensary including in February 1973 at Fort Polk essentially as he has contended. The examiner should provide a rationale for the conclusions reached. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case, e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc. If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. 5. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant 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). (CONTINUED ON NEXT PAGE) 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). ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs