Citation Nr: 1751329 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-36 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been submitted to warrant reopening the claim of entitlement to service connection for a bilateral knee disability. 2. Entitlement to service connection for a bilateral knee disability, to include degenerative joint disease and osteoarthritis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1974 to June 1987, September 2005 to February 2006, and March 2008 to March 2009. The Veteran served during the Vietnam Era, the Gulf War Era, and peace time. This matter comes before the Board of Veterans' Appeals (Board) from an October 2011 ratings decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-240 (1995). The issue of service connection for a bilateral 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. In August 2009, the RO denied service connection to the Veteran's bilateral knee disability. The Veteran filed a notice of disagreement in October 2009 and the RO issued a statement of the case in April 2010. The Veteran was notified of his rights but did not file a timely substantive appeal. 2. Evidence received since the August 2009 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral knee disability. CONCLUSIONS OF LAW 1. The August 2009 rating decision denying the claim of service connection to a bilateral knee disability is final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral knee disability. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veteran's Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). Because the Veteran's claim has been reopened, any error related to the VCAA with respect to this claim is harmless. See id; Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009). The underlying service connection claim for bilateral knee disability requires further development and is addressed in the Remand below. II. New and Material Evidence Under 38 U.S.C.A. § 5108 (West 2014), VA may reopen a previously and finally disallowed claim when "new and material" evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C.A. § 5108 (West 2014) require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-283 (1996). "New evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a)(ii) (2017). To warrant reopening, the new evidence must not be cumulative or redundant of the evidence of record at the time of the last prior final denials of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the phrase "raise a reasonable possibility of substantiating the claim" does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). While in this current case, the Board notes that the Veteran submitted service treatment records, dated April 1974 and May 1979, alongside the request for reopening, these records are duplicative of evidence already associated with the Veteran's file. As such, new and material evidence is still required. In August 2009, the RO denied service connection for a bilateral knee disability, citing to a June 2009 VA examination report finding that it was not as likely as not that pre-existing degenerative joint disease of the knees was permanently aggravated beyond normal progression. This decision also considered the Veteran's DD-214 and military personnel file, service treatment records dated April 1974 through February 2009, the Veteran's application for compensation dated March 2009, treatment records from UW Health dated November 2000 through June 2001, and Madison VA Medical Center Examination dated April 2009. The Veteran filed a notice of disagreement in October 2009 and the RO issued a statement of the case in April 2010 informing the Veteran of the negative outcome. See April 2010 Statement of the Case. The Veteran did not submit a timely substantive appeal and, therefore, the rating decision became final. 38 C.F.R. §§ 20.302, 20.1103 (2009). New evidence has been received since the August 2009 RO decision that is material to the Veteran's claim for service connection for a bilateral knee disability. Specifically, the Board has received a VA examination dated 2011 which provides the nexus element of service connection, the element not evidenced in the prior rating decision. The Board also finds that it raises a reasonable possibility of substantiating the Veteran's claim. As such, the Board finds that the evidence is new and material for purposes of reopening the claim. ORDER The petition to reopen the claim of entitlement to service connection for a bilateral knee disability is granted; the appeal is granted to this extent only. REMAND The Veteran is seeking entitlement to service connection for bilateral knee disability. Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to adjudicating this claim. The Board notes that the Veteran has undergone multiple VA examination for his claimed bilateral knee disabilities. When VA undertakes to provide a VA examination or to obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the Veteran's prior VA examinations are inadequate for the purpose of adjudicating these claims. The evidence of record contained the Veteran's 1974 entrance examination that demonstrated that he had no abnormality in either knee upon service commencement. See Entrance Examination, service treatment records (STRs), April 1974. However, evidence also shows that the Veteran fell and required subsequent treatment for an injury to his right knee. See STRs May 1979. Neither the documented evidence of an in-service knee injury, nor any direct service connection arising therefrom, was addressed in any of the VA examinations or opinions. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); VA Examinations dated April 2009, June 2009, October 2011. Specifically, the October 2011 examiner did not review the Veteran's claim file, and therefore the examiner did not consider all of the objective evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The most recent VA examination also did not consider the Veteran's lay statements regarding the possible causal link between the Veteran's in-service activities and corresponding knee symptomatology. While a layperson is not competent to diagnose complex medical matters, he is competent to report observable symptomatology of an injury or illness. See Barr v. Nicholson, 21 Vet. App. 303, 307-308 (2007). As the examiner did not consider the Veteran's lay statements, the examiner did not consider all of the evidence of record, and the rationale of this opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303 (2008); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). As no VA examination adequately considered all of the evidence nor adequately supported their opinions, the Board finds that a new VA examination is warranted at this time. See McLendon v. Nicholson, 20 Vet. App. 79 , 83 (2006); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The evidence of record demonstrates that the Veteran has a history of a fall while in-service which required treatment to his right knee. There is competent and credible evidence indicating a history of knee disability dating back to at least 1979 and specifically joint disease dating to 2001, prior to re-enlistment. However, there is no adequate opinion of record that addresses the possible nexus between the Veteran's in-service duties and his bilateral knee disability. As the issue of a nexus has not been adequately addressed during a VA exam, the Board finds that a remand is now warranted such that a competent etiological opinion may be obtained. On remand, the RO should also associate ongoing pertinent VA treatment reports with the record before the Board. 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following actions: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records. 2. After any additional records are associated with the claims file, schedule the Veteran for an examination to determine the nature and etiology of any current bilateral knee disability. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and such review must be reflected on the examination report. A complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. An explanation for each opinion shall be provided. a) Identify all diagnoses for the Veteran's left and right knee and provide approximate dates of onset for each disability, if possible. b) Concerning the period of service from April 1974 to June 1987, for each diagnosis identified, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the diagnosed knee disabilities were caused by activities or incidents in service, to include the stated fall on the right knee in 1979. c) Concerning the period of service from September 2005 to February 2006 and the period of service from March 2008 to March 2009, for each diagnosis identified, provide an opinion as to whether it was at least as likely as not (a probability of 50 percent or greater) aggravated (i.e., permanently increased in severity). d) If so, was any increase clearly and unmistakably (obviously, manifestly, or undebatably) due to the natural progress of the disease. Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability. Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's attention is invited to the Veteran's statements concerning the onset of his claimed disabilities. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last Statement of the Case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs