Citation Nr: 1805362	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  08-30 546	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Whether there is new and material evidence to reopen a claim for service connection for back disorder.  

2.  Entitlement to service connection for a back disorder.  

3.  Entitlement to service connection for a neck disorder. 

3.  Entitlement to service connection for hypertension, to include as secondary to a back disorder. 

4.  Entitlement to a rating in excess of 10 percent for a left knee disability, characterized as lateral and collateral ligament laxity.  

5.  Entitlement to a rating in excess of 10 percent based on instability for a right knee disability, characterized as lateral and collateral ligament laxity of the right knee.


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J.A. Williams, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from June 1978 to November 1983. 

This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

A hearing before the undersigned was held at the RO in May 2013.  The hearing transcript has been associated with the claims file.

The Board remanded the claims in February 2014 for additional development.  
 
The issues of entitlement to service connection for a neck disability, a back disability, hypertension, and increased rating for the bilateral knees are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction.


FINDINGS OF FACT

1.  A January 1998 unappealed rating decision denied service connection for a back disability.  

2.  The evidence received since the January 1998 rating decision denying service connection for back disability is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating a claim.


CONCLUSIONS OF LAW

1.  The January 1998 rating decision was final.  38 U.S.C. § 7105 (West 2014); 
38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017).

2.  New and material evidence has been received to reopen the issue of entitlement to service connection for a back disability.  38 U.S.C. § 5108 (West 2014); 
38 C.F.R. § 3.156(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

New and Material Evidence 

A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  Evidence is new if it has not been previously submitted to agency decision makers.  38 U.S.C.A. § 5108; 
38 C.F.R. § 3.156(a).  Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence cannot be cumulative or 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.  Id.

The Veteran's claim for service connection for a back disability was initially denied by a January 1998 rating decision based on a finding that the Veteran's back disability did not have its onset in service.  The Veteran did not appeal this decision or submit new evidence within one year of that decision and it became final.  
38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b).  In November 2006, the Veteran requested to reopen his claim. 

Evidence submitted since the January 1998 rating decision includes the testimony from the Veteran's May 2013 hearing as well as February 2016 lay statements from the Veteran's wife and friends indicating that the Veteran has back pain since separation.  The evidence is new in that it had not been previously submitted.  It is also material insofar as it relates to a potential connection between the Veteran's current back disability and service. 

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Fortuck v. Principi, 14 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992).  Furthermore, in Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Veterans Appeals (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Id.  Thus, the Board finds that the additional evidence is both new and material, and the claim of entitlement to service connection for a back disability is reopened.  


ORDER

The appeal to reopen a claim for service connection for back disorder is granted.  


REMAND

As the Veteran's back claim has reopened, on remand, a VA examination and medical opinion to determine the etiology of his back disability is warranted. 

As to the Veteran's claimed of entitlement to service connection for a neck disability,  in a July 2016 VA examination, the examiner opined that the Veteran's neck disability was less likely than not related to service.  The examiner reasoned that the Veteran's service treatment records do not show complaints of a neck injury.  The Board finds the VA examiner's opinion incomplete as the medical examiner cannot solely rely on the absence of treatment in service to conclude that there is no relationship between the Veteran's current disability and his military service.  Dalton v. Nicholson, 12 Vet. App. 23, 40 (2007).  Thus, a new VA examination is necessary. 

As to the Veteran's increased rating claims for the bilateral knees, the Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  After reviewing the claims file, the Board finds that the July 2016 VA examination is incomplete and a new examination is required in light of the holding in Correia.  

In addition, the Veteran's VA treatment records through April 2016 have been associated with the record.  On remand all outstanding treatment records should be associated with the claims file. 

The Veteran has claimed that his hypertension is exacerbated during flare-ups of back pain.  Therefore, the claim of service connection for hypertension is inextricably intertwined with the claim of entitlement to service connection for a back disability, and the issue of service connection for hypertension is held in abeyance pending completion of the development discussed below.  See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991).

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding medical records pertinent to the Veteran's claim, to include all VA treatment records dated from April 2016 to the present.

2.  Arrange for the Veteran to undergo a VA examination.  The examiner should render an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that his current neck and back disabilities began in military service or are otherwise related to a disease or injury in active service to include falling from a truck during a field training exercise.

3.  Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's bilateral knee disabilities.  All pertinent evidence of record should be made available to and reviewed by the examiner.  All necessary diagnostic testing and evaluation must be performed.

The examiner should provide all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

4.  Readjudicate the appeal. 

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 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).


______________________________________________
L. M. BARNARD 
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs