Citation Nr: 1800881 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 15-46 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for a left knee disability has been received. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a left ankle disability. 4. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for a right ankle disability has been received. 5. Entitlement to service connection for a right ankle disability. 6. Whether new and material evidence sufficient to reopen a claim for entitlement to service connection for residuals of a right leg fracture, to include a right knee disability has been received. 7. Entitlement to service connection for residuals of a right leg fracture, to include a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD D. Bassett, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1960 to March 1964. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2017, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the testimony is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a left knee disability, left ankle disability, right ankle disability, and residuals of a right leg fracture, to include a right knee disability, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. In a February 2004 rating decision, the RO denied entitlement to service connection for a left knee condition, right ankle damage, and a broken leg, right. The RO denied entitlement to service connection because there was no evidence the disabilities began during the Veteran's military service. The Veteran appealed to the Board, and in June 2007, the Board remanded the Veteran's claims for additional development. However, before the Board could promulgate a final decision on the Veteran's appeals, he requested to withdraw his pending appeals in June 2007. As such, the February 2004 RO rating decision became final. 2. In a June 2013 rating decision, the RO denied the Veteran's claims to reopen the issues of entitlement to service connection for a left knee disability, a right ankle disability, and a broken leg, right, because the evidence submitted was not new and material. 3. Since the final February 2004 rating decision, the Veteran and a witness provided additional evidence relating to the Veteran's claims for service connection at an October 2017 Board hearing. CONCLUSIONS OF LAW 1. The February 2004 rating decision, which denied the Veteran's claim of entitlement to service connection for a left knee condition, became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The additional evidence presented since the February 2004 rating decision is new and material, and the claim for entitlement to service connection for a left knee condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The February 2004 rating decision, which denied the Veteran's claim of entitlement to service connection for right ankle damage, became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 4. The additional evidence presented since the February 2004 rating decision is new and material, and the claim for entitlement to service connection for a right ankle disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 5. The February 2004 rating decision, which denied the Veteran's claim of entitlement to service connection for a broken leg, right, became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 6. The additional evidence presented since the February 2004 rating decision is new and material, and the claim for entitlement to service connection for residuals of a right leg fracture, to include a right knee disability, is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen As noted above, the RO denied entitlement to service connection for a left knee condition, right ankle damage, and a broken leg, right, in a February 2004 rating decision. The February 2004 decision noted that there was no evidence the Veteran's claimed left knee condition, right ankle damage, and a broken leg, right, were incurred in or caused by service. The Veteran appealed this denial to the Board in April 2004, but then withdrew his appeal in June 2007. As such, the February 2004 rating decision denying entitlement to service connection for a left knee condition, right ankle damage, and a broken leg, right, became final. Although the prior decisions 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 considered 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 December 2005, the Veteran and a witness appeared at the October 2017 hearing before the undersigned member of the Board. They provided evidence relevant to the Veteran's service connection claims, including evidence as to his in-service injury, his in-service treatment, and the symptoms he has experienced since his in-service injury. For the limited purposes of deciding whether to reopen the Veteran's claim, the credibility of this evidence is presumed. Justus, 3 Vet. App. at 513. Because this evidence relates to a potential nexus between a current disability and the Veteran's service, the Board concludes that this newly received evidence is not cumulative of the record at the time of the February 2004 decision with respect to the issues of entitlement to service connection for a left knee condition, right ankle damage, and a broken leg, right, and it raises a reasonable possibility of substantiating the Veteran's claims. See Shade, 24 Vet. App. at 110. As such, the evidence received since the February 2004 RO decision constitutes new and material evidence and the claims must be reopened. 38 C.F.R. § 3.156. ORDER New and material evidence having been received, the claim for entitlement to service connection for a left knee disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a right ankle disability is reopened. New and material evidence having been received, the claim for entitlement to service connection for a broken leg, right, is reopened. REMAND As noted by Veteran representative at the October 2017 hearing, the Veteran's service treatment records (STRs) were destroyed in a fire. When service records are unavailable through no fault of a veteran, the Board has a heightened duty to assist, an obligation to explain its findings and conclusions, and an obligation to carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board notes that it does not appear as if attempts have been made to attain records from base where the Veteran was stationed at the time of his accident. The Board finds that additional development is necessary to satisfy the heightened duty to assist the Veteran. The Veteran and Mrs. V. provided evidence at the hearing describing the Veteran's in-service injury and residuals he experienced. The Veteran testified that he had submitted medical evidence addressing the connection between his current disabilities and his in-service injury. However, there does not appear to be a competent medical opinion in the file addressing the Veteran's service connection claims. As the Veteran has provided evidence that his current symptomatology may be related to service, and in light of the heightened duty to assist when a Veteran's service records are unavailable through no fault of the Veteran, VA examinations are warranted. McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). Since the claims file is being returned it should be updated to include any VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers, and obtain the treatment records identified by the Veteran. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Conduct additional development required to meet the heightened duty to assist a Veteran whose STRs have been destroyed by no fault of the Veteran. The Veteran's statement of June 2003 and October 2017 hearing testimony should be reviewed to determine what additional development may be conducted to corroborate the Veteran's claims. If any records are unavailable, include a memorandum in the Veteran's file documenting attempts taken to procure these records. The additional development should include, but not be limited to the following: (a) Request the Veteran's full service personnel records. (b) Attempt to obtain records from Ernest Harmon Air Force Base, or any clinic, dispensary, hospital, or morgue, from December 1961 that would confirm an accident described by the Veteran in his June 2003 statement and the October 2017 hearing, resulting in the death of a service member. (c) Consistent with VAOPGCPREC 5-2014, attempt to obtain the service and other related records that belong to or pertain to a service member other than the Veteran, as they are potentially relevant to the Veteran's claim. The RO should specifically attempt to obtain, consistent with VAOPGCPREC 5-2014, records from the other service members involved in the December 1961 accident at Ernest Harmon Air Force Base. Document any attempts to obtain these records. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed left knee disability, left ankle disability, right ankle disability, and residuals of a right leg fracture, to include a right knee disability. Any and all studies, tests, and evaluations that are deemed necessary by the VA examiner should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, including review of the April 2002, treatment notes where the Veteran describes fracturing an ankle during service, his June 2003, statement describing his in-service injury, and the testimony at the October 2017 hearing. The examiner should then: (a) Provide a specific diagnosis for any current left knee disability, left ankle disability, right ankle disability, or residuals of a right leg fracture, to include a right knee disability. (b) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed right or left ankle or knee disability originated during, or is etiologically related to, active duty service. (c) Provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any diagnosed right or left ankle or knee disability was caused or aggravated by the Veteran's service-connected disabilities. The VA examiner should specifically address the Veteran's contention at the October 2017 hearing that his in-service right leg fracture led to his current disabilities. By aggravation, the Board means a permanent increase in the severity of the disability that is beyond natural progression. If aggravation is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's disability found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disability. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. After the above development has been completed, readjudicate the Veteran's claims. If the benefits sought remain denied, provide the Veteran and his representative with 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs