Citation Nr: 1628458	
Decision Date: 07/18/16    Archive Date: 07/28/16

DOCKET NO.  11-15 795	)	DATE
	)
	)

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


THE ISSUES

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

2.  Entitlement to service connection for a right knee disability.


REPRESENTATION

Veteran is represented by:  The American Legion


ATTORNEY FOR THE BOARD

C. Banister, Associate Counsel




INTRODUCTION

The Veteran served on active duty from March 1970 to June 1970.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The issues of entitlement to service connection for left and right knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A service connection claim for a left knee disability was initially denied in a September 1970 rating decision, and the Veteran did not perfect an appeal.

2.  Evidence received since the September 1970 rating decision relates to an unestablished fact regarding the Veteran's service connection claim and raises a reasonable possibility of substantiating that claim.  


CONCLUSIONS OF LAW

1.  The September 1970 rating decision is final.  See 38 C.F.R. §§ 3.156, 19.110, 19.118, 19.153 (1970).

2.  Evidence submitted to reopen the claim of entitlement to service connection for a left knee disability is new and material, and therefore, the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156 (2015).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In a September 1970 rating decision, service connection was denied for a left knee disability.  Although the Veteran was provided notice of the rating decision and notice of his appellate rights, he did not perfect an appeal nor did he submit new and material evidence within one year of that decision.  Therefore, the September 1970 rating decision is final.  See 38 C.F.R. §§ 3.156, 19.110, 19.118, 19.153 (1970).

The Veteran filed a claim to reopen service connection for a left knee disability in July 2009.  In a February 2010 rating decision, the RO reopened the Veteran's claim, but denied it on the merits.  Regardless of what the RO has done in this case, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

A final claim will be reopened if new and material evidence is presented.  38 U.S.C.A. § 5108 (West 2014).  New evidence means evidence not previously submitted to agency decision makers.  Material evidence means evidence that 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).

At the time of the September 1970 rating decision, the substantive evidence of record consisted of the Veteran's service treatment records.  The RO denied the claim because there was no record of a left knee injury during service, and the Veteran's left medial meniscus tear was determined to have preexisted service.  Since the September 1970 decision, the Veteran submitted a February 2010 written statement in which he asserted that he had no knee problems when he entered service and that his knee pain began during service and continued ever since.  Furthermore, during a February 2010 VA examination, the Veteran reported falling down a hill during service and tearing the cartilage in his left knee.

The Board finds that the evidence is new, as it has not been previously submitted to VA for consideration.  Additionally, as the Veteran's statements purport to establish that his left knee was healthy at enlistment and that he injured it during service, the Board finds that the evidence is material.  For the purpose of establishing whether new and material evidence has been received, the Board must presume the credibility of the new evidence.  Justus v. Principi, 3 Vet. App. 510 (1992).  Because the Veteran has submitted new and material evidence, the claim of entitlement to service connection for a left knee disability is reopened.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010); 


ORDER

New and material evidence having been submitted, the claim of entitlement to service connection for a left knee disability is reopened, and to that extent only the appeal is granted.


REMAND

The Veteran seeks service connection for left and right knee disabilities, which he asserts had their onset during service.

A March 1970 report of medical examination indicates that the Veteran's lower extremities were normal upon his entrance into active duty.  Subsequent service treatment records show multiple complaints of bilateral knee pain, greater on the left side, and without any acute injury.  An April 1970 report of medical examination shows a diagnosis of a left medial meniscus tear, and the Veteran was given a physical profile pending completion of a medical board proceeding.  In May 1970, a medical board determined that the Veteran was medically unfit for enlistment due to his left medial meniscus tear.  Thereafter, the Veteran signed a Disposition Form which states that "a medical examination [performed in April 1970] revealed that I have a medical condition which would have permanently disqualified me for entry into the military service had it been detected at the time."  In June 1970, the Veteran was discharged for failing to meet the medical fitness standards at time of enlistment.   

In February 2010, the Veteran underwent a VA examination of his left knee, during which he reported receiving a medical discharge from service after falling down a hill and tearing the cartilage in his left knee.  He reported current symptoms of pain, weakness, "popping," and giving way in his left knee.  He stated that he treated his pain with nonsteroidal anti-inflammatory drugs, braces, and wraps.  A physical examination revealed left and right knee tenderness and crepitation.  X-rays of the left knee showed no fracture, dislocation, joint effusion, or any signification degenerative changes, and soft tissues were unremarkable.  The diagnosis was left knee strain, resolved, with residual pain.  The examiner opined that the claimed condition was less likely than not caused by or a result of the left meniscus tear during service and provided the following rationale, in relevant part:

At this point in time, there are no records, private or military, to review documenting any further treatment to the Veteran['s] left knee after he left military service.  There are no records in [VA's Computerized Patient Records System (CPRS)] documenting the Veteran had any further treatment for his left knee.  Given these facts, the Veteran's current left knee condition is less likely as not (less than 50/50 probability) caused by or a result of the Veteran's tear to his left medial meniscus in service.

Because the examiner appears to rely solely on the lack of documented treatment after service without further explanation of the significance of that fact, the Board finds that a remand is necessary in order to provide the Veteran with a new VA examination and obtain a new medical opinion.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (holding that an examination was inadequate where the examiner relied solely on the lack of evidence in-service treatment records and ignored the Veteran's lay statements to provide negative opinion); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination when developing claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided).  

Additionally, service treatment records show complaints of pain in both knees.  As the Veteran has reported continuous bilateral knee pain since service, the Board finds that the low threshold of the McLendon standard has been met in this instance, and therefore, a VA medical opinion should also be obtained with respect to the Veteran's right knee.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

Finally, in written statements received in February 2010 and May 2011, the Veteran indicated that he is unable to work due to his knee disabilities and stated that he receives disability benefits from the Social Security Administration (SSA).  As such records may be relevant to his connection claims, on remand, the AOJ must attempt to obtain the Veteran's complete SSA records, including all administrative decisions and underlying medical records.  See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010) (holding that VA has a duty to obtain relevant SSA records when it has notice that the Veteran is receiving SSA disability benefits).  

Accordingly, the case is REMANDED for the following action:

1.  Request all records from the Social Security Administration relevant to the Veteran's claim for Social Security disability benefits, including all administrative decisions and underlying medical records.

2.  Thereafter, the Veteran must be afforded an appropriate examination to determine the nature and etiology of any left and right knee disabilities.  The claims file, including any records received pursuant to this Remand, must be reviewed by the examiner.  Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that:  a.) a current left knee disability was incurred in or caused by service; and b.) a current right knee disability was incurred in or caused by service.  

In rendering the requested opinion, the examiner may not rely solely on the lack of documented treatment for a knee disability after service without further explanation as to the significance of that fact as well as accounting for the Veteran's self-report of knee symptoms since service.  

A complete rationale for all opinions must be provided.  

3.  After completing the above actions, and any other development deemed necessary, the claims for service connection for left and right knee disabilities must be readjudicated.  If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran.  After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for further 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 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).



_________________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs