Citation Nr: 1801274 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-21 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen the application for service connection for a right knee disorder. 2. Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from December 1951 to November 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. Jurisdiction resides with the Huntington, West Virginia, RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of service connection for a right knee disorder (reopened) 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 an unappealed April 1956 rating decision, the RO denied service connection for a right knee disorder on the basis that there was no evidence of a current disability. 2. Evidence received since the April 1956 rating decision is new and material and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disorder. CONCLUSIONS OF LAW 1. The April 1956 rating decision denying service connection for a right knee disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the last denial of service connection for a right knee disorder and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was initially denied service connection for a right knee disorder in an April 1956 rating decision because there was no indication that he had a right knee disorder at that time. He was notified of the rating decision, but did not appeal the decision. As such, the April 1956 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim will be reopened in the event that new and material evidence is presented. 38 U.S.C. § 5108. Because the April 1956 rating decision was the last final disallowance, the Board must review all of the evidence submitted since that rating decision to determine whether the application to reopened should be granted and the claim re-adjudicated on a de novo basis. Evans v. Brown, 9 Vet. App. 273 (1996). If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Board shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Section 3.156(a) provides as follows: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the April 1956 rating decision consisted of the Veteran's service treatment records, and an April 1956 VA examination. The evidence received subsequent to the April 1956 rating decision includes, in pertinent part, an October 2015 statement from Dr. J.K, which indicates that the Veteran has a current diagnosis of degenerative arthritis of the right knee that was related to service. The Board finds that this evidence is new and material within the meaning of applicable law and regulations because it is probative of the issue. The October 2015 statement from Dr. J.K. is new, as such evidence was not of record prior to the issuance of the April 1956 rating decision. Moreover, the statement is material, as it relates to the unestablished element of a diagnosis and nexus between the claimed disorder and service. As such, the claim is reopened. Given that this is a full grant of the benefit on this issue, no further duty to notify or duty to assist is required. ORDER The application to reopen the claim of entitlement to service connection for a right knee disorder is granted; to this extent only, the appeal is granted. REMAND The Veteran was afforded a VA knee examination in June 2015. The examiner indicated that the Veteran underwent arthroscopic or other knee surgery for removal of cartilage in 1952; however, service treatment records do no show surgery to the right knee. In fact, in a post-service February 1956 VA examination, the examiner specifically indicated that the Veteran twisted his right knee and was hospitalized for 8 days in service; however, he did not have an operation. The examiner indicated that the service separation notation of operative removal of the cartilage was in error. Therefore, the examiner did not based his opinion on an accurate factual basis. Moreover, the June 2015 VA examiner did not perform X-rays or other imaging studies of the right knee although Dr. J.K. indicated that the Veteran had a current diagnosis of degenerative arthritis. Further, although the examiner indicated that the Veteran had a documented right knee injury in service, it was noted that this was acute and healed. However, service treatment records show that the Veteran injured his knee twice in service. In December 1952, he was seen for knee pain and reported that he twisted his knee and heard something "snap." The examiner indicated a belief of a possible ruptured lateral semilunar cartilage. In a separate February 1953 treatment note, the Veteran again complained of knee pain and weakness. Upon examination, there was slight medial instability. In a subsequent February 1955 treatment record, he was seen for falling on the right knee. His patella was very tender, but there was no fracture. Moreover, following service separation and during a February 1956 VA examination, the Veteran reported that his knee gave him some occasional trouble. For these reasons, the Board finds that a new VA examination is required. The Board recognizes that the October 2015 statement from Dr. J.K. indicated that the Veteran's right knee arthritis was related to service; however, the physician did not provide an adequate rationale in support of the opinion so it is not sufficient to grant service-connected. Dr. J.K. can be offered an opportunity to provide an additional statement. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA treatment records, if any. 2. Provide Dr. J.K. an opportunity to provide a further statement regarding the basis of his opinion that the Veteran's right knee disorder is related to service. 3. Schedule the Veteran for an examination to assist in determining the nature and etiology of his right knee disorder. Any indicated tests should be accomplished. The examiner should review the claims file in conjunction with examination, to include any newly associated records obtained as a result of this remand. Then, the examiner is asked to provide an opinion as to the following: (a) List all current diagnoses relating to the Veteran's right knee. (NOTE: the examiner should indicate whether the Veteran has arthritis in the right knee confirmed by X-rays). (b) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disorder was incurred in service or is otherwise related to service. (NOTE: service treatment records show that the Veteran injured his knee twice in service. In a December 1952 service treatment record, the Veteran was seen for knee pain and reported that he twisted his knee and heard something "snap." In a subsequent February 1955 treatment record, he was seen for falling on the right knee. His patella was very tender, but there was no fracture). (c) All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Thereafter, the AOJ should review the claims file to ensure that all of the foregoing requested development is completed. Then, the claim on appeal should be readjudicated. If any of the benefit sought remains denied, a supplemental statement of the case should be issued and provided to the Veteran and his representative. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs