Citation Nr: 1630224	
Decision Date: 07/28/16    Archive Date: 08/04/16

DOCKET NO.  15-03 444	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

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

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

3. Entitlement to an increased rating for bilateral hearing loss, currently rated noncompensable prior to April 19, 2013 and 40 percent from April 19, 2013.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife 


ATTORNEY FOR THE BOARD

K. Kovarovic, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from August 1952 to August 1955.

These matters come before the Board of Veterans' Appeals (Board) from January 2012 and June 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, wherein the RO continued a noncompensable disability rating for bilateral hearing loss, and declined to reopen the Veteran's claim for entitlement to service connection for a right knee disability on the basis that no new and material evidence had been received, respectively. The Veteran was later granted a 40 percent disability rating for bilateral hearing loss, effective April 19, 2013, in a December 2013 rating decision. 

The Board notes that the Veteran indicated a desire to withdraw his bilateral hearing loss appeal in April 2014. However, a new audiogram was received by VA that same month. Subsequently, during a May 2016 travel board hearing, the presiding Veterans Law Judge (VLJ) identified this matter as being on appeal and allowed the Veteran to provide testimony thereon. As such, the Veteran has reason to believe that this claim is still on appeal, and the Board may address the matter at this time. Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has treated it as on appeal and the appellant has a reason to believe it is on appeal).

Additionally, a transcript of the May 2016 travel board hearing is of record.

Further, the issue of entitlement to service connection for a left shoulder disability was certified to the Board for appellate review. However, the Veteran limited his December 2014 VA Form 9 to the issue of service connection for a right knee disability. As such, the issue of entitlement to service connection for a left shoulder disability is not before the Board for appellate consideration at this time. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).

Additionally, the Board notes that the issues of entitlement to service connection for a lower back disability, to include as due to a right knee disability, and entitlement to service connection for a right ankle disability, to include as due to a right knee disability, were raised by the record in an April 2016 VA treatment letter.  However, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). 

The issues of entitlement to service connection for a right knee disability and an increased rating for bilateral hearing loss are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1. A January 2012 rating decision denied service connection for a right knee disability on the basis that chronic disability was not incurred in or caused by service.  

2. The Veteran did not appeal the January 2012 rating decision or submit documentation constituting new and material evidence within the one-year appeal period.

3. Evidence received since the time of the final January 2012 decision is new and contributes to a more complete picture of the circumstances surrounding the origin of the Veteran's right knee disability. 


CONCLUSIONS OF LAW

1. The January 2012  rating decision is final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011); currently, 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).

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


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  In light of the Board's grant herein of the appeal to reopen the claim for service connection for right knee disability, no further discussion of VA's duties to notify and assist is required as there can be no prejudice to the Veteran as to any defect thereof.

The Veteran seeks to reopen a previously denied claim of entitlement to service connection for a right knee disability. 

VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C.A. § 5108 (2015); Evans v. Brown, 9 Vet. App. 273, 285 (1996).

New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a) (2015). 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. Id. 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. Id.  

The Court has held that new evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).  Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) (2015) to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2014). Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id.  

Here, the Veteran first filed a claim to establish service connection for a right knee disability in February 1957. That claim was denied in an April 1957 rating decision. This rating decision was not appealed, and the Veteran did not submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the April 1957 rating decision is final. 38 U.S.C. § 709 (1952); Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 (effective January 25, 1936 to December 31, 1957); currently 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).  

In June 2011, the Veteran filed a claim to establish service connection for a right knee disability. That claim was denied in a September 2011 rating decision. Additional evidence was received that same month, and a subsequent January 2012 rating decision was issued. The January 2012 rating decision denied the Veteran's claim on the basis that no new and material evidence had been received. This rating decision was not appealed, and the Veteran did not submit documentation constituting new and material evidence within the one-year appeal period. Accordingly, the January 2012 rating decision is final. 38 U.S.C.A § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011); currently, 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015).

In January 2014, the Veteran filed an informal petition to reopen his claim for service connection for a right knee disability. A June 2014 rating decision declined to reopen the claim on the basis that no new and material evidence had been submitted. The Veteran filed a notice of disagreement in July 2014, and a Statement of the Case was provided in October 2014. The Veteran filed a VA Form 9 in December 2014, and the issue has been certified to the Board for appellate review. 

Although the RO declined to reopen this claim in June 2014, RO decisions are not binding on the Board and, consequently, the Board must decide whether new and material evidence has been received to reopen the Veteran's claim. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the January 2012 rating decision is the last final disallowance regarding this claim, the Board must review all of the evidence submitted since that time to determine whether the Veteran's claim should be reopened and readjudicated on a de novo basis. The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material. Justus, 3 Vet. App. at 512-13.

As such, the Board now turns to the question of whether new evidence has been submitted since the final January 2012 rating decision. Evidence associated with the claims file since that time includes: lay statements from the Veteran dated January 2014, February 2014, and May 2014; a statement from the Veteran's representative dated March 2016; VA treatment records dated April 2016; and hearing testimony taken from the Veteran and his wife in May 2016. This evidence all qualifies as new as it was not of record at the time of the January 2012 rating decision.

The Board must now determine whether this evidence also qualifies as material, such that it relates to an unestablished fact necessary to substantiate the Veteran's claim. In undertaking this analysis, the Board notes that the evidence of record prior to the January 2012 rating decision indicates that the Veteran served aboard the USS Yosemite during service, and that servicemembers would commonly play sports to pass the time. On one such occasion, the Veteran was tackled and fell backwards, causing a right knee injury. As a result, the Veteran required the use of a knee brace, and has experienced pain ever since. 

In comparing this evidence to that submitted since the January 2012 rating decision, the Board finds that the new evidence also qualifies as material, as it raises a reasonable possibility of substantiating the Veteran's claim. 38 C.F.R. § 3.156(a) (2015). In particular, the Veteran's statements contribute to a more complete picture of the circumstances surrounding the origin of the Veteran's right knee disability, including the onset and severity of the in-service injury. The April 2016 VA treatment records speak to the current severity of the claimed disability, and the accompanying treatment letter provides a more current nexus opinion. Accordingly, the Board finds that the above evidence also qualifies as material. 

The Board therefore finds that new and material evidence has been received since the prior final denial of this claim in January 2012. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for a right knee disability is thus reopened.   


ORDER

New and material evidence having been received, the Veteran's claim for entitlement to service connection for a right knee disability is reopened, and to that extent only, the appeal is granted.



	(CONTINUED ON NEXT PAGE)



REMAND

The Veteran is seeking entitlement to service connection for a right knee disability and entitlement to an increased rating for bilateral hearing loss. A review of the record indicates that further development is necessary prior to adjudicating these claims.

First, VA's duty to assist includes obtaining relevant VA treatment records. 38 C.F.R. 3.159(c)(2) (2015). To date, the claims file contains VA treatment records from April 2016. However, during the May 2016 hearing, the Veteran reported that his right knee disability was first treated by Dr. Anderson at a VA facility in 1957. The Veteran further indicated that he currently receives treatment for both his claimed disabilities at the VA treatment center in Shakopee, Minnesota. As the Veteran has identified additional VA treatment records that may be relevant to his claims but have not yet been associated with the claims file, all reasonable efforts must be made to obtain them at this time.

VA's duty to assist further includes assisting veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). During the May 2016 hearing, the Veteran indicated that he had sought treatment for his right knee disability from a number of private providers, including a clinic located in Mankato, Minnesota, approximately one year after the Veteran's exit from service, and from Drs. Ware, Husterman, B. Neidl, and Brown, located in Edina, Minnesota during the 1970s. As these treatment records may be relevant to the Veteran's claim and have not yet been associated with the claims file, all reasonable efforts must be made to obtain them.

Finally, VA's duty to assist includes conducting a thorough and comprehensive medical examination. Baker v. Derwinski, 2 Vet. App. 315 (1992); Green v. Derwinski, 1 Vet. App. 121 (1991). This includes providing a new medical examination when a veteran asserts or provides evidence that his disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). Here, the Veteran most recently underwent VA knee examination in March 1957, and VA audiological examination in May 2013. However, in a January 2014 lay statement and during the May 2016 hearing, the Veteran indicated that both his claimed disabilities had worsened in severity. In light of this testimony, the Board finds that an examination is warranted with regard to both disabilities. 38 C.F.R. § 3.159(c)(4)(i) (2015); see Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Obtain and associate with the record all VA treatment records for the Veteran, including from his 1957 treatment with Dr. Anderson and all existing records from the Shakopee, Minnesota treatment facility. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing.

2. Ask the Veteran to clarify all private medical treatment he has received for his right knee disability since his exit from service. The RO should then take appropriate steps to secure copies of any private treatment records identified by the Veteran that are not currently of record. The RO should obtain authorization from the Veteran and then obtain all treatment records from the Mankato clinic and from Drs. Ware, Husterman, B. Neidl, and Brown. All actions to obtain the requested records should be fully documented in the record. The RO must make two attempts to obtain any private records identified, unless the first attempt demonstrates that further attempts would be futile.

If private records are identified, but not obtained, the RO must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated.

3. Thereafter, provide the Veteran with a new VA examination to assess the nature and etiology of his claimed right knee condition. The claims file and a copy of this remand must be made available for review, and the examination report must reflect that review of the claims file occurred.

The examiner must perform any necessary diagnostic tests and studies. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner is requested to offer an opinion as to whether it is at least as likely as not (50 percent probability or more) that the right knee disability began in service, was caused by service, or is otherwise related to service. The examiner should specifically address the onset of the right knee disability and its relationship to knee injury suffered during service. 

In formulating the opinion, the examiner is advised that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.

A complete rationale should be provided for all opinions and conclusions expressed.

4. Provide the Veteran with a new VA audiological examination to determine the current nature and severity of his service-connected bilateral hearing loss. The examiner must review the Veteran's claims file in conjunction with the examination. The examiner should perform all necessary diagnostic tests, including audiometric studies and Maryland CNC speech discrimination testing, and report all clinical manifestations in detail. Associate a copy of the examination report with the claims file.

5. Thereafter, readjudicate the claims on appeal. If the benefits sought are not granted, issue a Supplemental Statement of the Case and afford the Veteran and his representative an appropriate opportunity to respond. The case should then be returned to the Board as warranted.

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).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs