Citation Nr: 1635534	
Decision Date: 09/12/16    Archive Date: 09/20/16

DOCKET NO.  12-27 338	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disorder.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

David Nelson, Counsel

INTRODUCTION

The Veteran had unverified service from May 18, 1971 to June 10, 1971.

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In June 2016 the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file.  Virtual VA contains additional VA treatment records and documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal.

The reopened claim of entitlement to service connection for a left knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A March 1999 RO decision denied entitlement to service connection for a left knee disorder.  The Veteran did not appeal or submit new and material evidence within one year.  

2.  Evidence received subsequent to the March 1999 RO decision does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for left knee disability.



CONCLUSIONS OF LAW

1.  The March 1999 rating decision that denied the Veteran's claim of entitlement to service connection for a left knee disorder is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2015).

2.  New and material evidence has been received to reopen the claim of service connection for a left knee disorder.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the favorable decision to reopen the Veteran's left knee claim, any deficiency as to VA's duties to notify and assist is rendered moot.

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2015).  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C.A. § 5108 (West 2014).

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).

New evidence means existing evidence not previously submitted to agency decision makers.  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 (2015).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18. 

To establish service connection, a Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

In a March 1999 rating decision, the RO denied service connection because the evidence did not show there was aggravation of a pre-existing condition.  The Veteran did not appeal that decision nor submit new and material evidence within one year.  The rating decision is thus final based on the evidence then of record.  See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103.

Evidence of record at the time of the 1999 decision includes service treatment records (STRs) and the Veteran's lay statements.  The STRs indicated that the Veteran reported a pre-service injury to the left knee.  The Veteran was then treated for left knee complaints shortly after service entrance.  He was discharged due to the pre-existing left knee condition.  

Evidence submitted after the 1999 decision includes 1) a VA examination; 2) VA treatment records; and 3) the Veteran's lay statements.  The VA records showed complaints of left knee pain.  December 2010 VA X-rays noted left knee degenerative joint disease.  The VA examiner diagnosed left knee osteoarthritis and opined that the short period of time in service would not cause a lifetime aggravation of the condition.  At the June 2016 Board hearing, the Veteran reported an increase in severity of left knee symptoms during service.

The Board finds that new and material evidence has been presented.  The evidence, including the VA examination report is new because it was not previously submitted to VA.  The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a current disability.  See 38 C.F.R. 
§ 3.303(a); Shedden, 381 F.3d at 1167.  Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial.  See 38 C.F.R. § 3.156(a).  Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened.  Justus, 3 Vet. App. at 513.  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  Accordingly, for all of the above reasons, the Veteran's claim is reopened.   


ORDER

As new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee disorder, the appeal, to this extent, is granted.


REMAND

While new and material evidence has been received to reopen the left knee claim, whether the Veteran has such disability that is related to service requires further evidentiary and medical development.

First, remand is required to attempt to obtain relevant medical records.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  This includes making reasonable efforts to obtain relevant private medical records.  38 C.F.R. § 3.159(c)(1).  In a statement received in April 2011 and in his service treatment records the Veteran indicated that just prior to entering service (March 1971) he was involved in a motorcycle accident that required two left knee surgeries and a rehabilitation period.  Further, at his June 2016 Board hearing and at the August 2011 VA joints examination the Veteran indicated that in August 1971 he underwent left knee surgery.  As the Veteran's March 1971 and August 1971 left knee surgeries took place just prior to and subsequent to service, such are relevant to the Veteran's claim, and the Board finds that an attempt to obtain the March 1971 and August 1971 records should be made.

Second, remand is required to attempt to obtain Social Security Administration (SSA) records.  VA has a duty to assist claimants to obtain evidence needed to substantiate a claim.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015).  This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, records from Federal agencies such as the SSA.  38 C.F.R. § 3.159(c)(2).  At his June 2016 Board hearing the Veteran indicated that since November 2008 he has been in receipt of disability benefits from the Social Security Administration (SSA) that are based on left knee disability.  The Veteran's SSA records are not of record, and, as VA has a duty to obtain relevant SSA records, an attempt should be made to obtain the SSA records.

Third, remand is required to obtain a VA examination.  Where VA provides a veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Here, an August 2011 VA examiner provided a medical opinion that the Veteran's left knee disorder pre-exited service and was not aggravated by a short time in service.  But no knee disability was noted upon the Veteran's service entrance examination, because the April 1971 noted a normal lower extremity clinical evaluation.  See 38 C.F.R. § 3.304(b) (2015).  Accordingly, to rebut the presumption of soundness, there must be clear and unmistakable evidence that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. 
§ 1111 (West 2014); 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004).   Thus, an opinion based on this standard is required.

Accordingly, the case is REMANDED for the following action:

1.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after August 22, 2012.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.  

2.  Contact the Veteran and afford him the opportunity to identify by name and address the left knee surgery undergone in March 1971 and August 1971.  Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of the March 1971 and August 1971 left knee surgery and treatment.  All information obtained must be made part of the file.  All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative.

3.  Obtain the SSA records pertinent to the Veteran's claim for disability benefits, including a copy of any decision and copies of the medical records relied upon concerning that claim.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.  

4.  After any additional records are associated with the claims file, provide the Veteran with a VA left knee examination.  The claims file should be made available to the examiner for review.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  

The examiner must identify all current disorders of the left knee.  For each left knee disorder diagnosed:

A.  On the basis of all the evidence of record, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the disorder pre-existed his entry onto active duty?

B.  For each left knee disorder that clearly and unmistakably preexisted active service, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that each preexisting left knee disorder either (1) underwent no increase in disability during service, or (2) that any increase in disability during service was due to the natural progression of the condition?

C.  For any left knee disorder (if any) that did not clearly and unmistakably pre-exist active service, is it at least as likely as not that the left knee disorder had its onset in, or is otherwise caused by, the Veteran's service?

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

6.  Review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AOJ must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  

7.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have 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 matter 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).



______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs