Citation Nr: 1800614	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-20 617A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to service connection for right knee arthritis.

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

3.  Entitlement to service connection for left knee disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Lynch, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1976 to August 1980 and then from October 1980 to March 1986.  The Veteran also had time in the National Guard.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in October 2017.  A transcript of the proceeding is associated with the claims file.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  In an unappealed June 1986 rating decision, the RO denied entitlement to service connection for a left knee disability.

 2.  The evidence associated with the record since June 1986 relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for a left knee disability.



CONCLUSIONS OF LAW

1.  The June 1986 rating decision denying service connection for a left knee disability loss is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (2017).

2.  New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for a left knee disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence 

 In June 1986 decision, the RO denied the Veteran's claim for a left knee disability. The Veteran did not appeal this decision and it became final. 

Although the prior decision became final, a claim may nevertheless be reopened if new and material evidence is presented.  38 U.S.C. § 5108.  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 (a).

Whether or not the RO reopened a claim is not dispositive, as it is the Board's responsibility to consider whether it is proper for a claim to be reopened.  Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).

Evidence is presumed credible for the purposes of reopening a claim.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.  King v. Brown, 5 Vet. App. 19, 21 (1993).

The language of 38 C.F.R. § 3.156 (a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening."  Evidence "raises a reasonable possibility of substantiating a claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

If new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision.  38 C.F.R. § 3.156 (b).  VA is required to determine whether evidence received during the appeal period is new and material.  Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011).  If new and material evidence is found during this period, the decision does not become final. Id. 

Since the RO's previous final denial in June 1986, service connection was established for a low back disability as a result of injuring his back in August 2003 while on active duty for training.  See August 2004 rating decision.  Since that time, the Veteran has testified that he believes that his left and right knee disabilities are a result of his service-connected low back disability.  See July 2014 RO hearing, p. 8.  The Board concludes that this newly received testimony is not cumulative of the record at the time of the June 1986 decision with respect to the issue of entitlement to service connection for a left knee disability.  See Shade, 24 Vet. App. at 110.  In light of the foregoing, the Board finds that the evidence received since the March 1986 RO decision constitutes new and material evidence and the claim must be reopened.  38 C.F.R. § 3.156.



ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for left knee disability.


REMAND

Before a decision can be reached on the instant claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

At a July 2013 VA examination, the examiner diagnosed the Veteran with left knee osteoarthritis.  The examiner noted that the Veteran was only treated for 2 brief episodes of left knee pain in service (2 days of pain in 1982 and 1 day of pain in 1983).  However, in August 1976, the Veteran was treated for left knee pain of 2 days at Navy boot camp in August 1976; a left knee problem of 2 weeks in February 1981 and a twisted left knee with inflammation September1981.  Furthermore, the Veteran's January 1986 separation physical noted chronic left knee pain with slight swelling.  Id. at 4, 19, 30, and 63.

At the July 2014 RO Hearing, the Veteran noted that he injured his low back when he caught an 82 pound electric motor that fell from 3 to 4 feet while on active duty with the National Guard in September 2003.  The Veteran stated that he believed his service-connected low back condition has contributed to his knee problems.  At the October 2017 Board hearing, the Veteran testified that he thought that his left knee problem may have caused or contributed to his right knee problem.  

The record does not contain adequate medical opinions to date based on an inaccurate or incomplete analysis of the facts.  In light of the foregoing, additional medical opinions must be obtained.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (where VA provides the veteran with an examination in a service connection claim, the examination must be adequate).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should take appropriate steps to identify and obtain any outstanding relevant treatment records from VA providers as well as private providers to include Yale New Haven Hospital, Greenwich Hospital, Newington Veterans Administration Medical Center (VAMC), and West Haven VAMC.  The AOJ should associate all relevant records obtained with the Veteran's claims file.

2. The AOJ should afford the Veteran another examination of his right and left knee disabilities with an appropriate VA examiner.  The VA examiner should be provided with a complete copy of the claims file to include this remand order.  The VA examiner is asked to follow the following directives to the extent it is reasonably possible:

a. The examiner should opine as to whether it is at least as likely as not that the Veteran's claimed left and/or right knee disabilities were caused OR aggravated by his military service.

b. The examiner should opine as to whether it is at least as likely as not that the Veteran's claimed left and/or right knee disabilities were caused OR aggravated by his service-connected low back disability.

c. The examiner should opine as to whether it is at least as likely as not that one of the knee disabilities was caused OR aggravated by the other knee disability.

3. After completing the above development, adjudicate the claim. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs