Citation Nr: 1804651 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 16-24 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability and, if so, whether service connection is warranted. 2. Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Mr. Ronald Fletcher, Sr. WITNESSES AT HEARING ON APPEAL Appellant and Mr. Ronald Fletcher, Sr. ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran had active duty service from August 1961 to August 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. When this case was previously before the Board in November 2016, it was remanded to afford the Veteran a Board hearing. The Veteran was afforded a travel Board hearing before the undersigned in August 2017; a transcript is of record. The case has since been returned to the Board for further appellate action. 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). This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision below. The issue of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right knee disability is addressed below; all other issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for a right knee condition was denied in a September 2010 rating decision that was not appealed. 2. Evidence received since the September 2010 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final September 2010 decision, the criteria for reopening the claim for service connection for a right knee disability are met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2014) to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Review of the file shows the previous denial of entitlement to service connection in September 2010 was based on a determination that the evidence failed to show that a right knee condition was either occurred in or was caused by service. The September 2010 decision was not appealed nor was new and material evidence submitted within one year, accordingly, the determination is final. 38 C.F.R. §§ 3.156(b), 20.1103 (2017). The evidence received since the September 2010 decision includes in pertinent part correspondence from the Veteran, explaining how he injured his knees in service while playing basketball; photographs of the Veteran playing, and receiving awards for playing, basketball in service; VA examinations in August 2013 and February 2016; an August 2014 lay "buddy" statement from A.R.C., attesting to witnessing the Veteran injure both knees while playing basketball in service; and a June 2015 private treatment record from Dr. R.M., stating that the Veteran's symptoms of osteoarthritis would be consistent with someone who injured their knees and had subsequent surgery years ago. As noted above, the Veteran also testified before the undersigned during an August 2017 travel Board hearing as to why service connection was warranted. Because the opinion from Dr. R.M. and account of the in-service injuries were not present in September 2010, this evidence is sufficient to reopen the previously-denied claim. The foregoing evidence is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim. Therefore, this evidence is new and material, and reopening of the claim is in order. Shade v. Shinseki, No. 08-3548 (U.S. Vet. App. Nov. 2, 2010). ORDER The Board having determined that new and material evidence has been presented, reopening of the claim for service connection for a right knee disability is granted. REMAND The Board is of the opinion that additional development is required before the Veteran's claims are decided. The Veteran contends that service connection is warranted for a bilateral knee disability as related to an injury that occurred in service while he was playing basketball. Service treatment records show reports of the Veteran hitting his left knee on a gym wall in December 1964 while playing basketball and that he had occasional stiffness since that time. In response to the Veteran's claim, he was afforded a VA examination in August 2013 in which the examiner noted a diagnosis of mild degenerative joint disease of the left knee since after 2008. The VA examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness as the Veteran had minimal problems in the military and post discharge and recent (only since after 2008). As noted above, Dr. R.M. opined in June 2015 that the Veteran's symptoms of osteoarthritis would be consistent with someone who injured their knees and had subsequent surgery years ago. The Veteran was also afforded a VA examination in February 2016 in which the examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that only the left knee was noted as injured during service, not the right, and there was no medical nexus between the remote left knee injury and the current bilateral mild tricompartmental osteoarthritis. The examiner stated that the current bilateral knee osteoarthritis was more likely than not related to his advanced age, 75, and his occupation, construction. The Board finds that clarification is required in relation to the private and VA opinions of record. Namely, the August 2013 VA examiner appeared to base the opinion on absence of treatment; it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997). Moreover, the opinion from Dr. R.M. is too vague for adjudication purposes. Finally, the February 2016 VA examiner attributed the Veteran's bilateral knee disability to his age and occupation in construction; however, the Veteran testified before the undersigned that he worked in an administrative function since 1970. As such, the Board finds that an addendum opinion is warranted on remand. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating a medical opinion based on incorrect factual premise is not probative). Moreover, the record indicates that the Veteran is receiving Social Security Administration (SSA) benefits. To this point, the Board finds that on remand, the AOJ must make as many requests as necessary to obtain the Veteran's SSA records and associate them with the electronic claims file. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). On remand, the AOJ must also attempt to obtain any outstanding service treatment records as the Veteran contends that records are missing. The AOJ should also obtain all current VA medical records and any other private medical records the Veteran identifies. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: (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. Request from the SSA any and all records pertinent to the Veteran's claim for Social Security disability benefits as well as medical records relied upon concerning that claim. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the record. 2. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims. 3. Appropriate efforts must be taken to obtain copies of any outstanding service treatment records. As many requests as are necessary to obtain any relevant records must be made, unless it is determined that further efforts would be futile. If the search for such records has negative results, the AOJ should notify the Veteran and place a statement to that effect in the record. 4. Then, access to the Veteran's electronic claims file should be forwarded to the February 2016 VA examiner, or a suitable substitute, to provide an addendum opinion on the etiology of the Veteran's right and left knee disabilities. Unless the examiner finds that a new examination is required, the Veteran need not be examined again. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran's right knee and left knee disabilities had their onset in service or are otherwise related to active service, to include the documented 1964 knee injury while playing basketball. In rendering the requested opinion, the examiner is instructed to specifically acknowledge the Veteran's testimony. The examiner should view the Veteran as a reliable historian. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In formulating the opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, a rationale should be provided for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 5. Thereafter, undertake any other development action that is deemed warranted and readjudicate the Veteran's claims on appeal, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond. The appellant 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 A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs