Citation Nr: 1623418 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 11-22 247 ) 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 knee disability. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from May 1979 to October 1982. . These matters are before the Board of Veterans' Appeals (the Board) on appeal of May 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which confirmed and continued the denial of service connection for a left knee disability. The Board notes that in the March 2015 supplemental statement of the case (SSOC), the RO denied the Veteran's claim for service connection for a left knee disability without first addressing whether new and material evidence had been presented to reopen the claim. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). While there was some ambiguity over whether the Veteran requested a hearing before a Veterans Law Judge, in an April 2016 correspondence, the Veteran's representative clarified that a hearing was not requested. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. The issue of the entitlement to service connection for a left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed October 2002 rating decision, the RO denied service connection for a left knee disability. 2. Evidence received since the October 2002 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a left knee disability. CONCLUSIONS OF LAW 1. The October 2002 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.113 (2015). 2. New and material evidence has been received since the October 2002 denial, and the claim of 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(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran filed a claim for service connection for a left knee disability which was denied in an October 2002 rating decision on the basis that the Veteran did not have a current left knee disability. The Veteran was notified of this decision but did not appeal. As the Veteran did not appeal the October 2002 rating decision, that decision is now final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran sought to reopen his claim for service connection for a left knee disability in November 2008. VA may reopen and review a claim that 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). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the October 2002 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence received since the October 2002 rating decision includes a July 2006 private treatment report which noted a diagnosis of osteoarthritis of the left knee. The prior denial of service connection for left knee disability was based on a lack of evidence of a current left knee disability. The July 2006 private treatment report provided evidence of a current left knee disability as a diagnosis of osteoarthritis of the left knee was provided. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claims for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a left knee disability have been met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disability is reopened. REOPEN The Veteran essentially contends that he began experiencing knee problems during service, and that they have continued since that time. The Board notes that service treatment records do demonstrate that the Veteran had multiple instances of reported left knee pain between February 1980 and March 1981. Following a February 1980 injury in which he twisted his knee, x-rays were normal but the Veteran was placed in a cylinder cast for two weeks. He experienced a similar injury in July 1980, and no significant abnormality was found on the x-ray. A March 1981 service treatment report, however, indicates an assessment of probable chondromalacia of the left knee. A July 2006 private treatment report noted that the Veteran presented with left knee pain that had been ongoing for "several years." The Veteran reported that this knee pain began back in the military when he injured his knee. The private physician noted that the x-rays revealed medial compartment osteoarthritis of the left knee. In a February 2009 private treatment report, the same private physician noted that the Veteran reported that his knee problems had continued since he injured his knee while in the military in Germany in 1981. The Veteran reported progressive knee problems ever since. The diagnosis was left knee osteoarthritis. In a June 2009 correspondence, the private physician indicated that the Veteran's knee disability all started with an injury in the military. The physician noted that the injury was well documented and he felt that the disability was "obviously service-connected". The Veteran underwent a VA examination in June 2011. The Veteran reported that in 1981 while on field exercises he stepped in a hole and injured his left knee. He was in a cast for a period of 1 month. He continued to have pain after leaving service in 1982. He underwent a total left knee arthroplasty in July 2010. The diagnosis was a status left knee arthroplasty. In a July 2011 addendum opinion, the June 2011 VA examiner indicated that he reviewed the Veteran's claims file. The examiner noted that although there is evidence that the Veteran on 3 occasions had an acute injury which was addressed in service, there was inadequate documentation to relate the Veteran's present left knee condition with the treatment he received in service. The examiner opined that it was less likely than not that the Veteran's current left knee disability was caused by, resulted from or was permanently aggravated by his military service. The Board recognizes that the Veteran reported continuous symptoms since service, and that there is a favorable medical opinion of record. However, the private medical provider offered no rationale to support the finding that the Veteran's current arthritis was related to injuries sustained decades ago. On the other hand, the VA examiner who provided a negative opinion also offered virtually no rationale. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of service connection. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange new VA examination. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examination and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claims. 2. After the foregoing development has been performed to the extent possible, the Veteran should be afforded a VA examination, to be performed by an appropriate examiner, to determine the nature and etiology of his claimed left knee disability. The Veteran's claims file should be made available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed, including an interview of the Veteran to obtain the approximate date of onset of the symptoms in his knee. The examiner should provide a diagnosis with respect to the Veteran's claimed knee disability and an opinion as to whether he or she believes that the diagnosed disorder was at least as likely as not (i.e., at least a 50 percent probability) sustained during his active duty service or was caused by or resulted from injuries or illnesses sustained during his active duty service, to include documented left knee pain and the March 1981 assessment of probable chondromalacia of the left knee. If the examiner is unable to provide any of the opinions requested above without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner's opinions and rationale should be expressed in a typewritten and legible report. 3. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 4. After completion of the above development, the issue of the Veteran's entitlement to service connection for the left knee should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental statement of the case and be given an opportunity to respond. 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). 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015). Department of Veterans Affairs