Citation Nr: 1801159	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-14 597	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


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

2. Entitlement to service connection for a left knee disability, secondary to a service-connected right knee disability.

3. Entitlement to service connection for a right hip disability, secondary to a service-connected right knee disability.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1976 to November 1979. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Jackson, Mississippi Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is in the record.

During his February 2017 Board hearing, the Veteran requested the Board hold the record open for 90 days. Such request was granted and has been complied with. 

Although the RO reopened the Veteran's claim of service connection for a left knee disability by deciding the issue on the merits, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly.

As partially discussed during the February 2017 Board hearing, the Veteran's disagreement with a November 2015 rating decision reducing the Veteran's right knee disability with post-operative release, medical plica, and instability from 20 percent disabling to a noncompensable rating is not a claim on appeal. An attempted notice of disagreement (NOD), received November 2014, was premature, because the RO had only proposed to reduce the Veteran's rating for his right knee disability in a September 2014 rating decision. A NOD was not received by VA within one year of the November 2015 rating decision actually reducing the Veteran's rating, nor was new and material evidence submitted. Notably, in a statement dated November 2015, but received in December 2015, the Veteran requested reconsideration of the claim, rather than an appeal, and simultaneously filed a formal application for benefits. Because the Veteran's request was never adjudicated, the Board will refer the issue to the RO for adjudication.

The issue of entitlement to an increased rating for the Veteran's right knee disability post-operative release, medical plica, and instability has been raised by the record in a December 2015 formal application for benefits, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017).

The issues of entitlement to service connection for left knee and right hip disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1. An unappealed September 2004 rating decision denied the Veteran's original claim of service connection for a left knee disability based on a finding that there was no current disability. 

2. A May 2012 rating decision denying the Veteran's claim of service connection for a left knee disability was not final because new and material evidence was submitted within one year of adjudication. 

3. Evidence received since the September 2004 rating decision tends to show that the Veteran has a current left knee disability and that there is a causal link between the Veteran's left knee disability and his service-connected right knee disability.


CONCLUSION OF LAW

New and material evidence has been received, and the claim of service connection for a left knee disability may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Legal Criteria, Factual Background, and Analysis

Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003).

The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010).

When new and material evidence is received within one year after the date of mailing of an RO decision, it will be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156(b). As a result, when new and material evidence is received within one year of the date of mailing of a rating decision, that decision does not become final. Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).

In a September 2004 rating decision, the AOJ determined that the evidence of record did not reflect a current left knee disability. A May 2012 rating decision readjudicated the claim and denied on the basis that there was no in-service incurrence. In correspondence received in February 2013, the Veteran reported that he VA doctor told him his left knee overcompensated and worked harder because of his damaged right hip and right knee.

The May 2012 rating decision did not become final because the Veteran's February 2013 statement that his doctors told his left knee disability was related to his right knee was new and material evidence, because it related to an unestablished fact necessary to substantiate the claim-namely, a causal link (nexus) between the Veteran's left knee disability and his service-connected right knee disability. 

Since the September 2004 rating decision, the Veteran underwent a July 2011 VA examination wherein he was diagnosed with degenerative joint disease of the left knee. This evidence, along with the February 2013 statement, is clearly "new," because the opinion and statement postdate the September 2004 rating decision, and is also "material," because it is evidence of a current disability and nexus, relates to previously unestablished elements of service connection, and raises a reasonable possibility of substantiating the underlying claim. Consequently, the claim of service connection for a left knee disability may be reopened. 



ORDER

The appeal to reopen a claim of service connection for a left knee disability is granted.


REMAND

The Board finds that further development of the record is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to his claims.

As an initial matter, the record reflects that the Veteran receives Social Security Administration (SSA) disability benefits in connection with his diagnosis of ankylosing spondylitis, which is not service-connected. The record also reflects that, at least in the past, the Veteran's left knee and right hip pain was medically associated with his ankylosing spondylitis. See, e.g., July 1997 VA treatment records. Because the Veteran's SSA records may reasonably contain information relating to the Veteran's left knee and right hip disabilities, remand is required to obtain his SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).

The Veteran's treatment records reflect that his treating physician believes his left knee disability is, at the very least, somewhat related to his right knee disability. See August 2015 VA treatment records ("a primary injury being to the right knee which has led to compensatory complaints of the left knee over several years."). However, the Veteran's physician is not specific enough about the extent he believes the two disabilities are related (i.e., at least as likely as not) and also does not provide an adequate rationale for his beliefs. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As a result, it is not an adequate positive medical opinion relating to a causal link between the Veteran's left knee and right knee disabilities. The Veteran is free to obtain and submit a more detailed opinion from his treating physician, if he so wishes.

The Veteran underwent a VA hip examination in December 2012, wherein the examiner opined about whether the Veteran's service-connected right knee disability caused his right hip disability, but did not provide an opinion concerning aggravation. Accordingly, remand is necessary for a VA medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from May 2017 to the present. The AOJ should ensure that the Veteran's complete records from the Biloxi and Jackson VA Medical Centers (VAMCs) are associated with the record.

2. The AOJ should request directly from the SSA complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran should be informed in writing.

3. After the above development is completed, the AOJ should arrange for a medical opinion by an adequate medical professional to determine the nature and likely cause of the Veteran's right hip disability. Examination of the Veteran should be conducted only if the examiner deems it necessary. The examiner should review the claims file (including this remand). Based on review of the record, the examiner should provide an opinion that responds to the following:

(a) Please identify, by diagnosis, all the Veteran's right hip disabilities present during the appeal period (from November 2012).

(b) Regarding each disability diagnosed, is it AT LEAST AS LIKELY AS NOT (50% OR GREATER PROBABILITY) that the disability was either caused or aggravated by the Veteran's service-connected right knee disability? The opinion MUST address whether the disability INCREASED IN SEVERITY BEYOND ITS NATURAL PROGRESSION (i.e., was aggravated).

If any disability is found to have been aggravated by the Veteran's service-connected right knee disability, the examiner must specify, to the extent possible, the degree of additional disability resulting from the aggravation, indicating the "baseline" severity of such disability prior to any aggravation and the level of severity existing after the aggravation occurred.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.)

4. The AOJ should then review the record and re-adjudicate the claims. If they remain denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.



The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012).




_________________________________________________
VICTORIA MOSHIASHWILI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs