Citation Nr: 1802223	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-08 834	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Whether new and material evidence has been submitted sufficient to reopen the claim of entitlement to service connection for a right knee disability. 

2.  Entitlement to service connection for a right knee disability. 


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran, K.A., S.A., and L.A.




ATTORNEY FOR THE BOARD

R. R. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1998 to March 2001.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In April 2016, the Veteran testified at a hearing held at the RO before the undersigned.  A transcript of the proceeding has been associated with the record.

The issue of entitlement to service connection for a right 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.  The September 2009 RO rating decision denied the claim of service connection for right knee patellofemoral arthrosis; the Veteran was notified of the decision and apprised of her right to appeal, but she did not appeal in a timely fashion or submit new and material evidence within one year of notice of decision.

2.  The evidence received since the September 2009 RO rating decision is neither cumulative nor repetitive of facts that were previously considered.




CONCLUSIONS OF LAW

1.  The September 2009 rating decision that denied service connection for right knee patellofemoral arthrosis is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. 
§§ 3.156, 20.201, 20.302, 20.1103 (2017).

2.  The evidence received since the September 2009 rating decision is new and material for the purpose of reopening the claim of service connection for a right knee disability.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

To the extent the action taken herein below is favorable to the Veteran, further discussion of the VCAA is not necessary at this time.

The Veteran seeks service connection for a right knee disability.  The claim for service connection for right knee patellofemoral arthrosis was previously considered and denied by the RO in a September 2009 rating decision.  The Veteran did not appeal the decision and it became final.  38 C.F.R. § 20.1103.  A review of the claims file reflects that the Veteran did not submit any additional evidence within one year of the rating decision.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision.  38 U.S.C. § 7105.

As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final.  38 U.S.C. 
§ 5108; 38 C.F.R. §§ 3.156, 20.1105.  Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers.  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).  

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.  Id.  

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).   

Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance.  Id. at 120 (noting the assistance of 38 C.F.R. §  3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element).  In determining whether evidence is new and material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

At the time of the prior decision, the record included the claim and the service treatment records (STRs).  In essence, at the time of the prior decision, there was no accepted evidence of a current right knee disability.

The evidence received since the September 2009 rating decision includes evidence that is both new and material to the claim.  See 38 C.F.R. § 3.156.  The Veteran was afforded a VA examination in August 2011 and was diagnosed with right knee chondromalacia and a Baker's cyst.  This new evidence addresses the reason for the previous denials; that is, the absence of a current disability.  The credibility of this evidence is presumed for purposes of reopening the claim.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Accordingly, the claim is reopened.


ORDER

The application to reopen the claim for service connection for right knee disability is granted.

REMAND

The Veteran testified that her current right knee disability was caused by an in-service fall.  After her in-service fall, she received chiropractic treatment and was assigned to restrictive duties.  She indicated that her right knee injury forced her to switch to a different military occupational specialty (MOS).  The Veteran was involved in a post-service car accident, but she contends that she experienced knee continuous knee pain since service that pre-dated her car accident.  At the time of the hearing, she was under the care of a chiropractor.  These records have not been associated with the record. 

The Veteran's STRs indicate that she initially injured her right knee in February 1999.  She was sent to the emergency room for possible right knee surgery.  She was placed on a physical profile for right knee pain and patellofemoral arthrosis in January 2000.

In August 2011, the Veteran was afforded a VA examination to determine the nature and etiology of her right knee disability.  The VA examiner opined that the Veteran's right knee disability was most likely caused by or a result of her right knee injury in service.  The rationale for the opinion was "clinical experience and expertise."  This medical opinion is inadequate because the VA examiner did not provide a rationale for the opinion.

In January 2013, VA obtained an addendum medical opinion.  The VA examiner stated that it was clear that the Veteran had no chronic diagnosis or treatment for a right knee condition in service.  She concluded that the right knee condition was more likely than not due to injuries sustained in June 2011 and August 2011.  This medical opinion is inadequate because it is based upon an inaccurate factual premise.  The VA examiner stated that there was no evidence of a chronic diagnosis and treatment for a right knee condition while in service.  The Veteran's STRs indicate that she initially injured her right knee in February 1999.  She was sent to the emergency room for possible right knee surgery.  She was placed on a physical profile for right knee pain and patellofemoral arthrosis in January 2000.  Additionally, the Veteran testified that she received chiropractic treatment while she was in service.  

In April 2013, the Veteran underwent another VA examination.  The VA examiner noted mild chondromalacia patella and fracture of the patella.  She indicated that they were clearly sustained post service based on the negative X-ray and bone scan in 1999 and 2004.  This opinion is inadequate because it does not address the Veteran's STRs, the Veteran's lay statements regarding continued knee pain since service, and it does not apply the correct evidentiary standard.  The opinion does not address whether it is at least as likely as not that the Veteran's current right knee disability was incurred during active service. 

Based upon the forgoing, the Board finds that a remand is necessary to obtain outstanding treatment records and an adequate addendum medical opinion that addresses the etiology of the Veteran's right knee disability.

Accordingly, the case is REMANDED for the following actions:

1.  Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers, to specifically include the Veteran's private chiropractic treatment.  With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file.  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.  The AOJ should refer the case to the VA examiner who conducted the August 2011 VA examination, or another suitable examiner, if that individual is not available.  The claims folder must be made available to the examiner.  The examiner should then provide an addendum opinion, responding to the following question:

Is it at least as likely as not (50 percent or greater probability) that the Veteran's right knee disability was caused by the Veteran's active military service?

The examiner must include in the examination report the rationale for any opinion expressed.  He or she must address the Veteran's testimony regarding continued knee pain since service and the STRs that document right knee treatment and a physical profile.

3.  After completion of the above development, the Veteran's claim should be readjudicated.  If the determination remains adverse to her, she and her representative should be furnished with a supplemental statement of the case.

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 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).



______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs