Citation Nr: 1637435 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 14-27 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim for entitlement to service connection for a right knee condition. 2. Entitlement to service connection for a right knee condition to include as secondary to a service-connected left knee condition. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1992 to December 1993. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran also initiated an appeal of the issue of entitlement to service connection for tremors. However, he did not include this issue in his July 2014 substantive appeal indicating in pertinent part, that he was only appealing the issue of service connection for his right knee disability. In July 2014, the RO sent the Veteran a letter confirming the Veteran's request to discontinue further action on that claim and the Veteran was informed that the RO would take no further action on the claim. The Veteran was also told that he could reinstate his notice of disagreement as to this issue after it has been withdrawn if VA receives a request for reinstatement in writing within the remaining appeal period. No such request is of record, and therefore, no further appellate consideration will be given this issue. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board has also considered documentation included in the Virtual VA system in reaching the determination below. Accordingly, any future consideration of this case should take into consideration the existence of these electronic records. The issue of entitlement to service connection for a right 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. The RO most recently denied the Veteran's claim of entitlement to service connection for a right knee disability in a September 1997 rating decision. 2. Evidence presented since the September 1997 rating decision is new because it has not been previously submitted to agency decisionmakers, and material because it raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right knee disability. CONCLUSION OF LAW Evidence received since the September 1997 rating decision is new and material and the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 3.156, 20.200, 20.302, 20.1103 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Because the benefit is being granted in full, any development or notification actions under the Veterans Claims Assistance Act of 2000 (VCAA) do not avail the Veteran in pursuit of his petition to reopen his right knee service connection claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. As such, a discussion of whether the VA has met its statutory and regulatory duties to notify and assist the Veteran with development of his claim is unnecessary. II. General Evidentiary Principles Although the Board is required to state the reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). As such, the analysis herein focuses on the most salient evidence and explains why this evidence either is or is not probative. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Accordingly, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2013). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. With the exception of rating reduction decisions, it is the Veteran's "general evidentiary burden" to establish the elements of his claim. However, benefits can only be denied where the Board finds that the preponderance of the evidence weighs against the Veteran's claim. See id. Additionally, when the positive evidence supporting a claim of benefits and the negative evidence indicating a denial of benefits is relatively equal, the Veteran is entitled to the benefit of the doubt and the claim should be granted. See 38 U.S.C.A. §5107(b) (West 2014); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Below, Part III will outline the laws and principles governing petitions to a disability compensation claim on the basis of new and material evidence, and apply them to the facts of this case. III. New and Material Evidence to Reopen Right Knee Claim The Veteran's claim for service connection for a right knee disability has been previously considered by VA in prior final rating decisions. At that time, the RO considered the Veteran's service treatment records, post-service private medical records, and a VA examination. Specifically, in an April 1997 rating decision, the RO denied the Veteran's claim for service connection for a right knee disability. At that time, the RO noted that the Veteran's service treatment records did not show any traumatic injury of the right knee although in 1992 the Veteran did have physical therapy for bilateral knee pain assessed as patellar femoral pain syndrome. The RO also noted, however, that the Veteran's separation examination reported the lower extremities as normal. The RO also reviewed post-service private medical records dated in 1996 showing complaints of a two year history of bilateral knee pain; no specific diagnosis was shown. The Veteran was subsequently afforded a VA examination of his knees in July 1997. A positive past medical history of Osgood-Schlatter's disease of the knees as a child was noted. Following examination, the diagnosis was laxity of the right knee, anterior cruciate ligament; patellofemoral syndrome of the bilateral knees, left greater than right; and Osgood-Schlatter's of the knees with current tenderness at the tibial tubercle. The RO concluded that there was no actual right knee disorder shown to be related to the Veteran's military service. The RO then readjudicated the Veteran's claim for service connection for a right knee disability in a September 1997 rating decision. The RO found that service medical records showed right knee complaints on two occasions. However, there were no permanent residuals or chronic disability subject to service connection by service medical records or demonstrated by the evidence within one year of service. The Veteran did not appeal this decision, and it became final. In connection with the current appeal, the Veteran filed a request to reopen his claim of entitlement to service connection for a right knee disability in August 2012. In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. However, pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. In such a case, the claim is reopened and the former disposition of that case is reviewed de novo and readjudicated. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.160(d), 20.302, 20.1103. Here, the September 1997 decision became final because the Veteran did not submit a timely appeal and nor did he submit additional evidence in support of his claim prior to the expiration of the appeal period. As such, that decision became final. New evidence is defined as 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. See 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. Here, a review of the claims file reveals a March 2011 VA examination report assessing the Veteran's bilateral knee joints in which the Veteran is diagnosed with bilateral patellofemoral syndrome. Although at the time of the April 1997 rating decision, there was no right knee diagnosis, as noted above, at the time of the September 1997 rating decision, a VA examiner had provided several right knee diagnoses. However, now as well as then, there is no evidence linking any post-service right knee diagnosis to the Veteran's military service. Thus, the March 2011 report is neither new nor material. However, the Veteran has now advanced the theory that his right knee condition is secondary to increased weight-bearing that has resulted from his service-connected left knee condition. Although the Veteran is not competent to provide a medical etiology opinion, his lay statements regarding weight bearing provide an adequate lay basis for provision of a medical etiology opinion on a basis that had not been factually presented to VA at the time of the last final rating decision. Accordingly, the Board finds that this evidence is both new and material and raises a reasonable possibility of substantiating the Veteran's claim. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.160(d), 3.156, 20.200, 20.302, 20.1103 (2015). ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a right knee disability and to this extent only, the appeal is granted. REMAND I. Entitlement to Service Connection for a Right Knee Disability Here, a review of the claims file indicates that the Veteran was scheduled for a VA examination of his right knee sometime after May 2014. However, a June 2014 notation by the RO indicates that this examination was cancelled because the Veteran had refused an examination at that particular location. However, there are no documented letters or phone conversations associated with the claims file that document the Veteran's cancellation of this examination, and the Veteran has submitted several statements, most recently in an October 2013 statement, in which he indicates that he never called to cancel his examination appointment and was at that regional office on the date of the examination for two other appointments. Although it does appear that the RO tried to follow up with the Veteran as to why he had reportedly refused an examination at RO in May 2014, the record reveals that the Veteran's phone was disconnected. Accordingly, as it is unclear as to circumstances under which the examination was cancelled, and the evidence of record indicates that an etiology opinion is required to assist the Veteran in adjudication of his claim, the Board finds that remand of this claim is appropriate for provision of an etiology opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records for the Veteran's right knee and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Then, schedule the Veteran for an examination with an appropriate clinician to determine the etiology of his right knee disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. B. The examiner is requested to provide the following opinion: i. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee condition: (1) began during active duty service; or (2) is related to an event or injury that occurred during active duty service. ii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was proximately due to or the result of his service-connected left knee disability. iii. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was aggravated beyond its natural progression by his service-connected left knee disability. C. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state so and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 3. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. After undertaking any necessary additional development, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs