Citation Nr: 1643679 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 14-01 919 ) 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 degenerative joint disease of the right knee. 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative joint disease of the left knee. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative joint disease of the right shoulder. 4. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative disc disease, lumbar spine. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The veteran served on active duty from February 1982 to March 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2011 and December 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). Notices of disagreement were received in July 2011 and January 2012; statements of the case were issued in October 2013; and a substantive appeal was received in December 2013. The veteran presented testimony at a Board hearing in February 2016. A transcript of the hearing is associated with the veteran's claims folder. The issues of entitlement to service connection for Gulf War illnesses; chronic right foot pian; retroperitoneal fibrosis with secondary deep vein thrombosis and hypertension; costochondritis; leukopenia (decreased WBCs); a respiratory disability (tuberculosis); a skin disability (lower body); left ankle degenerative joint disease; mouth sores; headaches; left wrist degenerative joint disease; astigmatism; glaucoma; joint and muscle pain; and fatigue have been raised in a September 2016 correspondence. They 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 entitlement to service connection for degenerative joint disease of the right knee, left knee, right shoulder and lumbar spine, on the merits, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In January 2003, the RO denied the Veteran's application to reopen a claim of service connection for a right knee disorder. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision's issuance 2. Certain evidence received since the January 2003 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2003 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 3. In January 2003, the RO denied the Veteran's application to reopen a claim of service connection for a left knee disorder. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision's issuance 4. Certain evidence received since the January 2003 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2003 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 5. In January 2003, the RO denied the Veteran's application to reopen a claim for a right shoulder injury. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision's issuance 6. Certain evidence received since the January 2003 decision is neither cumulative nor redundant of the evidence of record at the time of the January 2003 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. 7. In June 1998, the RO denied the Veteran's claim of service connection for a back disability. The Veteran failed to file a timely notice of disagreement and no new and material evidence was received within a year of the rating decision's issuance 8. Certain evidence received since the June 1998 decision is neither cumulative nor redundant of the evidence of record at the time of the June 1998 denial and, by itself or in conjunction with the evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection. CONCLUSIONS OF LAW 1. The January 2003 RO rating decision, which denied the Veteran's application to reopen a service connection claim for right knee pain is final. 38 U.S.C.A. § 7105 (West 2014). 2. Evidence received since the January 2003 RO rating decision is new and material; accordingly, the claim for service connection for degenerative joint disease of the right knee is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 3. The January 2003 RO rating decision, which denied the Veteran's application to reopen a service connection claim for left knee pain is final. 38 U.S.C.A. § 7105 (West 2014). 4. Evidence received since the January 2003 RO rating decision is new and material; accordingly, the claim for service connection for degenerative joint disease of the left knee is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 5. The January 2003 RO rating decision, which denied the Veteran's application to reopen a service connection claim for a right shoulder injury is final. 38 U.S.C.A. § 7105 (West 2014). 6. Evidence received since the January 2003 RO rating decision is new and material; accordingly, the claim for service connection for degenerative joint disease of the right shoulder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). 7. The June 1998 RO rating decision, which denied the Veteran's service connection claim for a back disability is final. 38 U.S.C.A. § 7105 (West 2014). 8. Evidence received since the June 1998 RO rating decision is new and material; accordingly, the claim for service connection for degenerative joint disease of the lumbar spine is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Following notification of an initial review and adverse determination by the Regional Office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. Following receipt of a notice of a timely disagreement, the RO is to issue a statement of the case. 38 C.F.R. § 19.26. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). Otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. When a claim to reopen is presented, a two-step analysis is performed. The first step of which is a determination of whether the evidence presented or secured since the last final disallowance of the claim is "new and material." See Elkins v. West, 12 Vet. App. 209, 218-19 (1999) (en banc); see also 38 U.S.C. § 5108; Hodge v. West, 155 F.3d 1356, 1359-60 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (which define "new and material evidence") provides as follows: New evidence means existing 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. 38 C.F.R. § 3.156(a) (2015) Second, if VA determines that the evidence is new and material, the VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist has been fulfilled. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second step becomes applicable only when the preceding step is satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held that to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally denied on any basis. Additionally, evidence considered to be new and material sufficient to reopen a claim should be evidence that tends to prove the merits of the claim that was the specified basis for the last final disallowance of the claim. In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held that for new and material evidence purposes only, new evidence is presumed to be credible. The only exception would be where evidence presented is either (1) beyond the competence of the individual making the assertion or (2) inherently incredible. If new and material evidence has been received with respect to a claim that has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. In this case, the Veteran's claims of service connection for right and left knee disorders, and for a right shoulder injury were originally denied by way of a June 1998 RO decision. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. As such, the decision became final. The veteran petitioned to have these claims reopened. In January 2003, the RO found that no new and material evidence had been received with which to reopen the claims. The Veteran failed to file a timely notice of disagreement, and no evidence was received within the appeal period after the decision. Consequently, the decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 3.156(b) (2011) (new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). This represents the most recent final denial of the claims. The evidence on record at the time of the January 2003 denial included service treatment records, private treatment records from Dr. L.W.H., and VA treatment records. The service treatment records showed that the veteran sustained an injury to his right and left knees in January 1984 during service when he fell during a basketball game (VBMS, 8/26/14, STRs #1, p. 14). The injury was treated conservatively, and there were no further complaints. A February 1998 VA examination found there veteran to have full range of motion. He had cracking and popping on passive range of motion. The etiology of the pain was unknown. Likewise, the service records reflect that the veteran sustained a right shoulder strain in August 1989 (VBMS, 8/26/14, STRs #1, pgs. 24-27). The injury resolved, but he reinjured it in February 1994. He was put on profile for two weeks and the condition resolved (VBMS, 8/26/14, STRs #1, pgs. 17-22). A February 1998 VA examination revealed full range of motion and normal x-rays. The diagnosis was chronic right shoulder pain. The basis for the denials was the fact that pain alone, without a diagnosed or underlying malady or condition, does not constitute a disability for which service connection can be granted. Evidence received since the January 2003 rating decision includes October 2013 x-rays that reflect minimal bilateral acromioclavicular degenerative change (VBMS, 10/31/13) and November 2015 x-rays that reflect mild degenerative findings in the right and left knees and right shoulder (VBMS, 2/26/16). The Board notes that the Court has interpreted the language of 38 C.F.R. § 3. 156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as enabling rather than precluding the reopening of a claim. The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which does not require new and material evidence as to each previously unproven element of a claim. It was indicated that it would be illogical to require that a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element, as it would force the Veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). In determining whether the submitted evidence is new and material, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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, 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. The Board finds that these x-ray findings constitute new and material evidence. As noted above, the RO previously denied the claim because there was no diagnosis or underlying malady upon which a service connection claim could be based. The new evidence shows objective findings of degenerative joint disease. This constitutes an unestablished fact necessary to substantiate the claim. As new and material evidence has been received to reopen the claim, the claims for entitlement to service connection for a right shoulder disability, and right and left knee disabilities are reopened. Back The Veteran's claim of service connection for a back disability was denied in June 1998. He failed to file a timely notice of disagreement, and no new and material evidence was received within the appeal period after the decision. As such, the decision became final. In April 2007, the veteran applied to have the claim reopened. In June 2007, he withdrew that claim. The evidence on record at the time of the June 1998 denial included service treatment records and VA treatment records. The service treatment records showed that the veteran reported back pain in June 1984 after playing basketball. He was diagnosed with a muscle strain and treated conservatively; and the condition resolved (VBMS, 8/26/14, STRs #1, p. 15; STRs #2 p. 52). He sought treatment again in January 1997 associated with pounding ground rods. He was diagnosed with paravertebral muscle spasm resolved (VBMS, 8/26/14, STRs #2 p. 49). He was treated conservatively, made no additional complaints, and was discharged from service two months later. A February 1998 VA examination revealed chronic low back muscle spasms, with normal range of motion and normal x-rays. The basis for the denials was the fact although there was a record of treatment in service, there was no permanent residual or chronic disability shown in-service. Evidence received since the June 1998 rating decision includes November 2015 x-rays that reflect degenerative disc disease L4-5; and S-shaped thoracolumbar scoliosis (VBMS, 2/26/16). The Board finds that these x-ray findings constitute new and material evidence. As noted above, the RO previously denied the claim because there was no evidence of a chronic disability. The new evidence shows objective findings of degenerative disc disease. This constitutes an unestablished fact necessary to substantiate the claim. As new and material evidence has been received to reopen the claim, the claim for entitlement to service connection for degenerative disc disease, lumbar spine is reopened. ORDER New and material evidence having been received, the Veteran's claims of service connection for disabilities of the right knee, left knee, right shoulder, and lumbar spine are reopened. REMAND The Board finds that the veteran received treatment for each of these disabilities during service. Additionally, there is x-ray evidence of current disabilities affecting both knees, the right shoulder, and the low back. The element of service connection not yet established is a nexus opinion linking the current disabilities to service. The veteran underwent a VA examination in October 2013, and the examiner rendered a nexus opinion weighing against each of these claims. However, the rationale was lacking in that it consisted solely of stating that there was "no documentation to support chronic condition." However, the veteran testified that his symptoms began during service and have continued to the present (VBMS, 2/11/16). The VA examiner did not take into account his statements regarding continuity. The Board notes that the veteran has filed claims for these disabilities in March 1997, April 2002, April 2007, July 2010, and July 2011. He reported back pain in August 2004 (VBMS, 6/21/07, p. 20). He also reported back pain in May 2007, December 2008, and June 2009 (VBMS, 11/12/09, pgs. 93, 101, and 106). He reported knee pain and osteoarthritis in April 2009 and October 2009 (VBMS, 12/07/09, pgs. 6, 32). He reported right shoulder pain in June 2010 (VBMS, 8/5/10, pgs. 12-13). The Board finds that these treatment reports and the veteran's statements constitute some evidence of continuity. Additionally, the veteran's in-service symptoms seem consistent with his in-service activities (Hearing Transcript, VBMS, 2/11/06, pgs. 7-8). Additionally, the Board notes that the veteran completed a n August 1991 Report of medical History in which he stated that "For the last four years, my knees have been making occasional popping noises mostly when I get out of bed in the morning, or stand after sitting a long time." (VBMS, 8/26/14, STRs #1, p. 29). He completed a February 1997 Report of Medical History in which he reported periodic bilateral knee pain since 1983 (VBMS, 8/26/14, STRs #1, p. 9) see also VBMS, 8/26/14, STRs #2 p. 45). Given the VA examiner's lack of consideration of the veteran's statements regarding continuity, the Board finds that a new examination and opinion are warranted. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA orthopedic examination for the purpose of determining the nature, etiology and severity of his right shoulder disability, right and left knee disabilities, and low back disability. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant evidence, to include the claims file, service treatment records, post-service treatment records; a history obtained from the veteran, the clinical evaluation, and any tests that are deemed necessary, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any disability began during or is causally related to service, to include as due to the 1984, August 1989, February 1994, and January 1997 injuries. The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion. 2. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs