Citation Nr: 1804870	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  13-33 984A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Whether new and material evidence was obtained to reopen a claim of entitlement to service connection for a right knee disability, to include as a result of a service-connected disability.

2.  Entitlement to service connection for a right knee disability, to include as a result of a service-connected disability.

3.  Entitlement to an initial rating in excess of 10 percent for the residuals of an anterior fibulotalar ligament rupture.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from May 1981 to December 1982.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA).  In September 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  

Although the RO adjudicated the right knee issue on the merits, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis.  Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996).  For this reason, the Board has included on the title page the issue as to whether new and material evidence has been submitted to reopen the claim for service connection.

The issues of entitlement to service connection for a right knee disability and entitlement to an increased rating for the residuals of an anterior fibulotalar ligament rupture are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  An unappealed November 2009 rating decision denied entitlement to service connection for a right knee disability.

2.  Evidence added to the record since the November 2009 rating decision raises a reasonable possibility of substantiating the service connection claim.


CONCLUSIONS OF LAW

1.  The November 2009 rating decision which denied entitlement to service connection for a right knee disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1100 (2017).

2.  New and material evidence was obtained, and the claim for entitlement to service connection for a right knee disability is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence.  New evidence means existing evidence not previously submitted to agency decisionmakers.  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 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 


The United States Court of Appeals for Veterans Claims has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board.  Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000).  

When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  

A November 2009 rating decision denied entitlement to service connection for a right knee disability.  The RO determined that there was no evidence of a right knee condition in service or for many years thereafter, and that there was an absence of evidence relating the Veteran's arthritis of the knee to his active service. Further, as service connection for a right ankle had not been established, service connection for a right knee disability on a secondary basis was inappropriate.  The Veteran was notified of the decision and his appellate rights, but did not appeal.  No new and material evidence was received within a year of the decision, which would have triggered a review of the claim.  Accordingly, the decision became final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.1100 (2017).  

The Board finds that the evidence received since the November 2009 rating decision raises a reasonable possibility of substantiating the service connection claim.  The evidence includes VA and private treatment reports not previously of record, including a January 2017 VA medical statement noting it was possible that the Veteran's service-connected right ankle disability was contributing to his present right knee disability.  Indeed, it was not until June 2013 that the Veteran was awarded service connection for a disability of the anterior fibulotalar ligament (a right ankle condition).  The Board finds this newly obtained evidence is pertinent to the Veteran's claim and that the claim must be reopened.


ORDER

The application to reopen previously denied claims for service connection for a right knee disability is granted.


REMAND

Additional development is required for an adequate determination.  The Veteran contends that he has a present right knee disability as a result of active service, including as a result of injuries sustained in parachute jumps and/or which was caused or aggravated by his service-connected right ankle disability.  The evidence of record includes a June 2014 VA medical opinion noting that there was no major deformity to the right ankle and that the findings were typical of degenerative arthritis rather than a single trauma or a secondary disability.  A January 2017 VA medical statement, however, found it was possible that right ankle instability was contributing to right knee instability and pain.  Although an April 2013 VA examination found no evidence of right ankle instability, the January 2017 VA statement indicates a worsening of the service-connected ankle disability and a possible aggravation of a knee disability.  Such triggers the need to afford the Veteran a new examination to address the severity of his ankle disability.  Further, while probative, that opinion is too speculative to grant service connection for the right knee disability.  See Morris v. West, 13 Vet. App. 94, 97   (1999) (noting that a diagnosis that appellant was "possibly" suffering from schizophrenia was deemed speculative).

VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim.  See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159. 3.327 (2017); see also El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not due to," "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)).  An adequate orthopedic examination for a service-connected disability should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary.  Correia v. McDonald, 28 Vet. App. 158 (2016).  For the reasons discussed, the Board finds an additional VA examination and opinions are required.  Prior to any examination, up-to-date VA treatment records should be obtained.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain all pertinent VA medical records not yet associated with the appellate record.

2.  Schedule the Veteran for an examination for opinion as to the current nature and extent of his service-connected right ankle disability.  All manifest symptoms involving the right ankle should be identified with an assessment as to the degree of severity.  The examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information to the right and left ankles, must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary. 

The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a right knee disability that:

a. had its onset in service, or
b. is etiologically related to his active service, or
c. was caused by his service-connected right ankle disability, or
d. was aggravated (worsened and not due to the natural progress) by his service-connected right ankle disability.  

The examiner must acknowledge review of the pertinent evidence of record.  All necessary tests and studies should be conducted.

Rationale for the requested opinion shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.

3.  Thereafter, the AOJ should address the issues on appeal.  If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review

The appellant has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012).



_________________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs