Citation Nr: 1804966	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  10-09 305	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for a gastrointestinal (GI) disability.

2.  Whether new and material evidence has been received to reopen a claim of service connection for left knee disability, including the residuals of a meniscectomy.

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

4.  Entitlement to service connection for a gastrointestinal disability.

5.  Entitlement to service connection for a left knee disability, including the residuals of a meniscectomy.

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

7.  Entitlement to service connection for bilateral hearing loss.

8.  Entitlement to service connection for tinnitus.

9.  Entitlement to service connection for a neck disability, including as secondary to the service-connected left shoulder disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Young, Counsel


INTRODUCTION

The Veteran served on active duty from June 1972 to October 1975.  

These matters come before the Board of Veterans' Appeals (Board) from a June 2007 (notice sent in July 2007) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  In April 2015, this case was remanded to the agency of original jurisdiction (AOJ) to schedule the Veteran for a videoconference hearing.  In July 2016, a videoconference hearing was held before the undersigned Veterans Law Judge.  At the hearing the Veteran waived initial consideration by the RO of any additional evidence received.



The claims addressing new and material evidence have been reopened in this decision.  All claims, including the reopened claims, are REMANDED to the AOJ.


FINDINGS OF FACT

1. An April 1976 rating decision denied the Veteran's claims of entitlement to service connection for a gastrointestinal disability and left and right knee disabilities, finding essentially that there was insufficient evidence that any currently diagnosed disability was related to service.  The Veteran did not appeal the denial of those claims or submit new and material evidence within a year of the decision, and the April 1976 decision became final.  

2.  Evidence associated with the claims file since the April 1976 rating decision includes new evidence that relates to unestablished facts necessary to substantiate the Veteran's claims of service connection for gastrointestinal and left and right knee disabilities and raises a reasonable possibility of substantiating the claims.  


CONCLUSIONS OF LAW

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

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


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


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Given the favorable disposition reopening the service connection claim for gastrointestinal and knee disabilities, the Board finds that all notification and development action needed to fairly adjudicate these claims have been met. 

The RO denied the Veteran's claims of service connection for gastrointestinal, left knee, and right knee disabilities by an April 1976 rating decision.  The Veteran's service treatment records and statements in support of his claim were of record at the time of the adjudication.  Based on this evidence, the RO denied the service connection claims for a current disability or evidence relating any such disability to service.  The RO also denied the Veteran's service connection claim for a left knee disability finding no evidence that a preexisting meniscectomy increased in severity during service, any other currently diagnosed disability, nor evidence relating any such disability to service.  

The Veteran was notified of this decision and of his procedural and appellate rights but did not complete an appeal of the decision nor submit new and material evidence within one year; and the April 1976 rating decision became final.  38 C.F.R. §§ 3.156, 20.302, 20.1103.  Moreover, since that rating decision, VA has not received any then-extant and relevant service records, rendering 38 C.F.R. § 3.156(c) inapplicable to the present matter.  As indicated above, the Veteran's service treatment records were included in the claims file as of the April 1976 rating decision, and they were discussed in the decision.

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C. § 5108.  VA must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994).

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.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record.  Evans v. Brown, 9 Vet. App. 273 (1996).  Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed.  Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

Since the April 1976 decision became final as to the service connection claims for gastrointestinal, left knee and right knee disabilities, additional evidence has been associated with the Veteran's record.  The evidence includes April 2007 VA examinations reflecting current gastrointestinal and bilateral knee diagnoses.  The Veteran also testified that the symptomatology associated with the disabilities began in service and continued since separation.  See Fortuck, 17 Vet. App. at 179-80.

This evidence is "new" in that it was not before agency decision makers at the time of the April 1976 decision, denying service connection for gastrointestinal, left knee, and right knee disabilities, nor is such evidence cumulative of evidence previously of record.  The evidence is also "material" in that it goes to the question of whether there are currently diagnosed disabilities related to service or that relates to unestablished facts necessary to substantiate the claims.  This evidence is presumed credible solely for the purposes of reopening, and raises a reasonable possibility of substantiating the claims.  See Shade, 24 Vet. App. at 117.  

The criteria for reopening the service connection claims for a gastrointestinal disability, a right knee disability and a left knee disability are met, and to this extent only the appeal is granted.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  Additional development is necessary on remand before these claims can be adjudicated on their merits, however.


ORDER

The service connection claim for a gastrointestinal disability is reopened; to this extent only, the appeal is granted.  

The service connection claim for a left knee disability, including the residuals of a meniscectomy, is reopened; to this extent only, the appeal is granted.  

The service connection claim for a right knee disability is reopened; to this extent only, the appeal is granted.  


REMAND

A remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

VA has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes obtaining relevant records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  It also includes providing a medical examination if such examination is determined to be necessary to decide the claim.  

At the July 2016 hearing, the Veteran reported having private medical treatment; some of those records are not associated with the claims file.  In April 2007, the Veteran submitted a form authorizing the release of medical records from Dr. Jason Hunt, DC.  In November 2007 the AOJ notified the Veteran that his signature was needed on the release form (VA Form 21-4142) in order to request those records.  There was no response to this request.  The Veteran also reported he received treatment from Dr. Silver (in Beaumont, Texas), Dr. Harvey Randolph, and Dr. J. Bell (in Groves, Texas).  These records have not been requested or associated with the Veteran's claims file.  Remand is required for contacting the Veteran regarding his authorization to release these private treatment records.  Notably the Veteran reported treatment by Dr. Peter Shedden, whose records have been associated with the Veteran's claims file.  

In addition, of record is a Social Security Administration (SSA) "Notice of Award" letter.  This letter is notice that the Veteran is in receipt of SSA disability benefits.  The Veteran's records have not been requested from SSA for association with the claims file.  Accordingly, upon remand, SSA records should be obtained, as these records are potentially pertinent to the Veteran's pending claims.  

The April 2007 VA examination opinion provided in connection with the Veteran's right and left knee disability service connection claims is not adequate.  Significantly, the opinion is limited to a possible nexus between the Veteran's currently diagnosed knee disability and "the treatment for the left knee giving out causing him to fall."  The examiner does not appear to consider a possible relationship between the claimed disability and any in-service incident or trauma (e.g., the actual in-service fall).  Further, the examination opinion does not adequately consider or provide a necessary opinion regarding whether any left knee disability that pre-existed service (e.g., meniscectomy) was aggravated by the Veteran's period of service.  On remand, the Veteran must be provided an appropriate examination and adequate opinions obtained.  See Barr v. Nicholson, 21 Vet. App. 303 (2007). 

The April 2007 VA examination addressing the service connection claim for a gastrointestinal disability is also inadequate.  The examiner specifically states that after examining the Veteran there is no current gastrointestinal condition, but the examination report specifically indicates a diagnosis of gastroesophageal reflux disease and usage of medication to manage relevant symptoms.  Given this inconsistency, it is unclear whether the provided opinion is based on an accurate factual predicate.  Thus, the examination is not adequate for deciding this claim and another VA examination must be provided on remand.  Id.  

The April 2007 VA examination related to the service connection claim for a neck disorder does not reflect adequate consideration of the Veteran's competent account of in- and post-service symptomatology nor the numerous service treatment records documenting multiple neck/cervical spine treatments.  The examiner's opinion does not provide sufficient analysis for the provided opinion.  Further, the Veteran asserts alternatively that his claimed neck disorder is the result of his service-connected left clavicle fracture disability.  The Veteran is to be provided another VA examination and an adequate examination opinion obtained on remand.  Id. 

Accordingly, the case is REMANDED for the following action:

1. The Veteran must be furnished with a 38 C.F.R. § 3.159(b) notice letter addressing his service connection claims, including his neck disorder claim on a secondary service connection (38 C.F.R. § 3.310) basis.  The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his claimed disorders.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.  This request should include any treatment records from Dr. Silver (in Beaumont, Texas), Dr. Harvey Randolph, and Dr. J. Bell (in Groves, Texas).  

The AOJ should follow the procedures set forth in 38 C.F.R. § 3.159(c)(1) as regards requesting records from other than a Federal department or agency.  All records and responses received should be associated with the Veteran's record.  

2.  Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including administrative records and any medical records relied upon to make the decision.  All efforts to obtain these records must be documented.  Efforts to obtain these records should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile.

3.  After all available records have been associated with the Veteran's record, schedule the Veteran for VA examinations with appropriate examiners to determine the nature and etiology of the claimed gastrointestinal, left knee, right knee and neck disabilities.  The examiners should review the record and the review must be noted in the examination reports.  A copy of this remand must be made available to the examiners in conjunction with the examinations. 

Based on a review of the Veteran's record, the results of physical examination, and the Veteran's statements regarding the development and treatment of his disabilities, the VA examiners are requested to complete the following:

a) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's gastrointestinal disability is related to active service or any incident of service. 

b) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's left knee disability, including the residuals of a meniscectomy ,is related to active service or any incident of service. 

c) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right knee disability is related to active service or any incident of service.

d) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's neck disorder is related to active service or any incident of service. 

The examiner should also determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's neck disorder was caused by or aggravated by the service-connected left clavicle fracture disability.

A rationale for all opinions expressed must also be provided, and the rationale should include a discussion of any differing opinions of record.  

4.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If any benefit sought remains denied, furnish the Veteran and his representative a Supplemental Statement of the Case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs