Citation Nr: 1804984	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  17-15 562	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for residuals of a right knee injury.

2. Entitlement to service connection for residuals of a right knee injury.


ATTORNEY FOR THE BOARD

T. C. King, Associate Counsel


INTRODUCTION

The Veteran had honorable active service in the United States Army from February 1974 through February 1976, with additional service in the North Carolina National Guard from 1976 to 1993 including various periods of active duty for training (ACDUTRA) and inactive duty for training (IDT). 

This appeal comes before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, that continued the denial of the claim of entitlement to service connection for residuals of a knee injury, as new and material evidence was not submitted.  The Veteran perfected a timely appeal of that determination.  See September 2013 Notice of Disagreement (NOD); February 2017 Statement of the Case (SOC); March 2017 Substantive Appeal (VA Form 9).

The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).

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 entitlement to service connection for residuals of a knee injury is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran did not appeal the May 1976 rating decision that denied the claim of entitlement to service connection for residuals of a right knee injury; thus, the decision became final.

2. Evidence submitted since the May 1976 rating decision raises a reasonable possibility of substantiating the Veteran's claim of service connection for residuals of a right knee injury. 



CONCLUSIONS OF LAW

1. The Regional Office's May 1976 rating decision to deny service connection for residuals of a right knee injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).

2. New and material evidence has been received to reopen the claim of entitlement to service connection for residuals of a right knee injury. 38 U.S.C. §§ 1110, 1111, 1131, 1137, 1156, 5108 (2012); 38 C.F.R. §§ 3.156, 3.304, 3.306 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id.

Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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) (2017). 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).

New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18.

In this case, the Veteran was initially denied service connection for residuals of a right knee injury in a May 1976 rating decision, which found the evidence of record insufficient to show permanent aggravation of the Veteran's pre-existing knee condition. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO's decision within one year. Nor was any new and material evidence received within a year. 38 C.F.R. § 3.156(b) (2017).

As a result, the RO's decision became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

Evidence of record at the time of the May 1976 rating decision included the Veteran's service treatment records and his induction and separation exams. The evidence received since the time of the RO's May 1976 rating decision includes January 2015 statements from the Veterans' brothers noting that the Veteran was injured in Germany and that his gait changed since leaving service. Additionally, with the appeal to the Board, the Veteran submitted a March 2017 medical opinion that opined the Veteran's injury in service most likely aggravated his knee condition.

The medical opinion was not before adjudicators when the Veteran's claim was last denied in May 1976 and it is not cumulative or redundant of the evidence of record at the time of that decision. In addition, the lay statements indicating the Veteran's gait worsened are not merely cumulative, as they could support a finding of in-service aggravation. In sum, the new evidence relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a right knee injury and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).


ORDER

As new and material evidence has been received, the previously denied claim of entitlement to service connection for residuals of a right knee injury is reopened.


REMAND

The Board finds that additional development is required before the Veteran's claim on appeal is decided. 

A review of the record shows that, in October 1973, the Veteran was afforded an enlistment examination. In the examination report, it was noted that the Veteran had a pre-existing right knee injury.  An orthopedic consultation was ordered, and the consulting physician noted five significant abnormal findings, yet noted the Veteran to be sound and sufficiently healthy to enter into active service. The Veteran was subsequently accepted into active service in February 1974. Service treatment records from September 1974 reflect a report of pain in the right knee after falling during a training exercise. An injury from 1970 is noted, the Veteran was diagnosed with a knee strain. The Veteran was prescribed ace wraps and heat, and was restricted from physical activity for three days. Service treatment records reflect pain having been reported in October 1974, and the Veteran was restricted from running for three months. In October 1974, there is service treatment record report of medical history, where the Veteran reported "swollen or painful joints," "broken bones," bone joint or other deformity," "trick or locked knee," and reported having had a past operation on his right knee. In December 1974, there is a service treatment record recording pain being reported for three days. The examination noted a past surgery, a bone screw, a fracture, and noted the prior in-service fall. The examination also noted flexion to 45-50 degrees and painful crepitance. Chronic knee pain secondary to surgery was noted as the impression. The Veteran was prescribed bedrest for 24 hours, and was referred for an orthopedist consultation.

A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137 (2012); 38 C.F.R. § 3.304(b) (2017).

A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002).
	
In addition to his direct claim of aggravation, the Veteran also asserts that he injured his knee in service. There is no post-service VA examination in the record. 

The Board finds the Veteran should be afforded a new VA examination to determine the nature and etiology of any current right knee disability, and to consider the new and material evidence on the case.

Additionally, attempts to identify and obtain any outstanding VA and private treatment records should be made before a decision is made in the appeal.

Accordingly, this case is REMANDED for the following action:

1. Identify and obtain any outstanding, pertinent VA and private treatment records not already of record in the claims file. 

2. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of his right knee disability. 

The contents of the electronic claim files (in VBMS and Virtual VA), to include a copy of this Remand, are to be made available to the designated examiner for review. The examiner is to note in the medical report that this action has been accomplished. All tests and studies, as well as the clinical findings contained therein, should be reported in detail. 

Based on the examination results and review of the record, the examiner should provide an opinion as to the following:

**Did the Veteran enter service with a pre-existing right knee injury?  If so, did such right knee injury and/or its residuals progress at a greater rate than normally expected (i.e., exacerbated beyond the natural progression of the condition) during active service, to include as a result of the Veteran's having sustained a fall during a training exercise in September 1974?

**If the Veteran DID NOT enter service with a pre-existing right knee injury, did any right knee disorder, which the Veteran now has, have its onset during service, or was otherwise caused by or a result of active service, to include the Veteran having sustained a fall during a training exercise in September 1974?  

**Was any right knee disorder, which the Veteran now has, caused by or results from the Veteran's service-connected left knee disability, to include any altered gait/body mechanics resulting from such?

**Did any right knee disorder, which the Veteran now has, progress at a greater rate than normally expected (i.e., exacerbated beyond the natural progress of the condition) due to or as a result of the Veteran's service-connected left knee disability, to include any altered gait/body mechanics resulting from such?

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The medical professional should discuss the particulars of this Veteran's medical history and the relevant medical sciences that apply to this case, which may reasonably make clear the medical guidance in the study of this case.

3. After the development above has completed, review the file and ensure that all development sought in this REMAND is completed. Arrange for any further development indicated by the results of the development requested above, and re-adjudicate the issue of service connection for residuals of a right knee injury. If determination remains adverse to the Veteran, the AOJ should furnish an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should be returned to the Board for further appellate consideration, if in order, for further review. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

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.




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs