Citation Nr: 1805473 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-19 462 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUES 1. Whether new and material evidence to reopen a claim for service connection for a low back disability (characterized as a lower back pain) has been received. 2. Entitlement to service connection for a low back disability. 3. Whether new and material evidence to reopen a claim for service connection for a right knee disability has been received. 4. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Campbell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to April 1993, June 2001 to September 2001, and from January 2003 to August 2003. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2008 rating decision in which the RO, inter alia, denied service connection for a right knee condition and low back disability claimed as lower back pain. In August 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2011. In his June 2011 substantive appeal (Form 9), the Veteran requested an in-person Board hearing at the RO. The RO subsequently scheduled him for a Decision Review Officer (DRO) hearing, with notification via an August 2011 letter. However, on the date of the scheduled hearing, the Veteran waived the formal DRO hearing (reserving his right to a formal Board hearing) and elected an d an informal discussion with RO personnel, which was took place on the his scheduled DRO hearing in September 2011; the conference report has been associated with the claims file. As regards characterization of the appeal the Board notes that although the RO did not address both claims as requests to reopen previously denied claims, as discussed below, there was a prior 1994 final denial of service connection for both a bilateral knee disability (with service connection for left knee disability subsequently granted) and for a low back condition. Hence, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen each previously denied claim for service connection. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001);Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. Id. As the Board must first decide whether new and material evidence to reopen the claim has been received-and, in view of the Board's favorable decision on each request to reopen-the Board has characterized this appeal as now encompassing the requests to reopen the previously denied claims, as well as the de novo claims for service connection (as reflected on the title page). While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems. The Board's decision addressing the petitions to reopen the claims for service connection for right knee and low back disabilities are set forth below. The claims for service connection for right knee and low back disabilities, on the merits, are addressed in the remand following the order; these matters are being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim herein decided have been accomplished. 2. In a June 1994 rating decision, the RO denied service connection for a low back condition; although notified of the denial in a June 1994 letter, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. New evidence associated with the claims file since the June 1994 denial relates to an unestablished fact necessary to substantiate the claim for service connection for back disability and raises a reasonable possibility of substantiating the claim. 4. In the June 1994 rating decision, the denied service connection for inter alia, a right knee disability; although notified of the denial in a June 1994 letter, the Veteran did not initiate an appeal ,, and no pertinent exception to finality applies. 5. New evidence associated with the claims file since the June 1994 denial relates to an unestablished fact necessary to substantiate the claim for service connection for a right knee disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1994 rating decision in which the RO denied service connection for a low back condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 20.302, 20.1103 (2017). 2. As additional evidence received since the June 1994 denial is new and material, the criteria for reopening the claim for service connection for back disability are met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The June 1994 rating decision in which the RO denied service connection for, inter alia, a right knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(b)-(c), 20.302, 20.1103 (2017). 4. As additional evidence received since the June 1994 denial is new and material, the criteria for reopening the claim for service connection for a right knee disability are met. 38 U.S.C. §§ 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the favorable dispositions of the requests to reopen claims for service connection for back and right knee disabilities, the Board finds that all notification and development actions needed to fairly adjudicate these matters have been accomplished. Under legal authority in effect at the time of the prior denial and currently, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110 (2002 - 2012); 38 C.F.R. § 3.303 (2005 - 2017). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). The Veteran's prior claims for service connection for right knee (then, bilateral knee) and back disabilities were considered and denied by the RO in a June 1994 RO rating decision. The pertinent evidence then of record consisted of the Veteran's service treatment records (STRs) and a July 1992 VA examination report. The RO noted that STRs provided no evidence of complaints or treatment for a right knee or back disorder and no impairment or chronic disability was found upon the July 1992 examination. On these bases, the RO denied the claims. Although notified of the June 1994 denials in a letter dated that same month, the Veteran did not initiate an appeal with respect to either claim. See 38 C.F.R. § 20.200 . Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). Therefore, the RO's June 1994 denial of the claim is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). In this case, the Veteran sought to reopen his claims for service connection for a back disability in July 2007 and for a right knee disability in August 2007. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156 (a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim if the claim was reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Pertinent evidence added to the claims file since the June 1994 rating decision includes, VA treatment records, lay statements, and private treatment records, to include an October 2011 medical letter indicating that the Veteran's high impact activity and jumping during service may have contributed to his bilateral knee condition. The medical records also reflect diagnosis of osteoarthritis, arthralgia, and patellofemoral syndrome in the knee, as well as degenerative disc disease of the lumbar spine, bulging disc, and stenosis. The collective lay and medical evidence indicates that right knee and back symptoms began during service and suggest a relationship between the Veteran's right knee and back disabilities and his service. In particular, in lay statements, the Veteran reported knee and back symptoms during service in Panama as an infantryman when he jumped out of the helicopter and landed on the grand while his leg was straight, which caused his knee and back injuries, and he experienced worsening pain since that incident. Also, the Veteran indicated that he did not seek treatment for his injuries sooner, because he did not want to jeopardize his military career, as he knew it would lead to a medical discharge. The Board finds that the above-described evidence, when considered in light of the evidence previously of record, provides a basis for reopening the previously-denied claims. This evidence is "new" in that it was not before the RO at the time of the June 1994 denial and is not duplicative or cumulative of the evidence previously of record. Moreover, this evidence, while not dispositive, is "material" in that it relates to unestablished facts necessary to substantiate the claim for service connection-namely, whether the Veteran's back and knee disabilities occurred in or was related to service-and thus, when presumed credible, also raises a reasonable possibility of substantiating the claim. See, e.g., Shade, supra. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for knee and back disabilities are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER As new and material evidence has been received to reopen the claim for service connection for back disability, to this limited extent only, the appeal as to this matter is granted. As new and material evidence has been received to reopen the claim for service connection for right knee disability, to this limited extent only, the appeal as to this matter is granted. REMAND The Board's review of the claims file reveals that further AOJ action on both of the reopened claims is s warranted. Specific to the right knee, in October 2011, after the AOJ's issuance of the May 2011 SOC, but prior to the AOJ's certification of the appeal to the Board, the Veteran submitted a private medical opinion in October 2011 indicating that the Veteran's high impact activity and jumping during service may have contributed to his bilateral knee condition. Also, following certification of the appeal to the Board, additional relevant medical evidence was associated with the record, which reflects diagnosis of osteoarthritis, arthralgia, and patellofemoral syndrome for the knee. However, the file does not reflect that the AOJ has considered this evidence, and the Veteran did not waive initial AOJ consideration of the evidence. The appellate scheme set forth in 38 U.S.C.A. § 7104 (a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. See 38 C.F.R. § 19.31 (b)(1) (2016). When evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case (SSOC) must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. See 38 C.F.R. § 19.37 (a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. Furthermore, any pertinent evidence submitted by a claimant or his representative after an appeal is certified to the Board, it must be referred to the AOJ, unless such evidence is accompanied by a waiver of consideration by the AOJ or the Board determines that the benefit(s) to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304 (c) (2016); see Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) (holding that appellants are denied "one review on appeal to the Secretary" when the Board considers additional evidence without having to remand the case to the AOJ for initial consideration, and without having to obtain the appellant's waiver). But see Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, § 501, Pub L. 112-154, 126 Stat. 1165 (August 6, 2012) (amending 38 U.S.C.A. § 7105 by adding new paragraph (e) and providing that if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration). Under these circumstances, the Board has no alternative but to remand the right knee claim for AOJ consideration of the additional evidence received, in the first instance, and for issuance of an SSOC reflecting such consideration. See 38 C.F.R. §§ 19.31, 20.1304. See also Disabled American Veterans, 327 F.3d 1339. With regard to the low back claim, the Veteran contends that he has a current low back disability that is related to service, specifically an in-service injury. As noted above, the Veteran has asserted experiencing back symptoms during service in Panama as an infantryman when he jumped out of the helicopter and landed on the grand while his leg was straight, which caused his knee and back injuries, and he experienced worsening pain since that incident. Also, the Veteran indicated that he did not seek treatment for his injuries sooner, because he did not want to jeopardize his military career, as he knew it would lead to a medical discharge. In this case, it appears STRs as to only the Veteran's first period of service from March 1987 to April 1993 are available. The military personnel records reflect that the Veteran was in Panama from December 1989 to January 1990, which was in an imminent danger pay area. The Veteran also earned the Combat Infantry Badge (CIB) and parachutist badge, as reflected on his DD-214. The medical evidence reflects diagnoses of degenerative disc disease of the spine and bulging disc with minimal stenosis. Here, the Veteran has a diagnosed back disability and his testimony and VA treatment records indicate persistent and recurrent complaints of back pain since service, and a medical opinion has not been obtained on the matter of the etiology of the Veteran's claimed back disability. In light of all of the above, to include the competent lay statements and testimony of record, the Board finds that the VA examination spine examination to obtain an appropriate medical etiology opinion is warranted. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, on remand, the AOJ should arrange for the Veteran to undergo VA spine examination by an appropriate physician .The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the reopened claim. 38 C.F.R. § 3.655 (b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record with respect to both claims is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records .. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the VA Medical Center (VAMC) in Washington, D.C., and that records from this facility is dated up to January 2018; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). See also Dunn v. West, 11 Vet. App. 462, 466-467 (1998); Bell v. Lewinski, 2 Vet. App. 611, 613 (1992). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (particularly as regards private (non-VA) records), explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see 38 U.S.C.A. § 5103(b)(3) clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.. §§ 5103, 5103A ( 2012); 38 C.F.R. § 3.159 (2017\. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the AOJ should also undertake any other development or notification action deemed warranted (to include arranging for the Veteran to undergo VA examination or otherwise obtaining a medical nexus opinion in connection with the right knee claim, if appropriate) prior to adjudicating the remaining matters on appeal. As noted, adjudication of the claims must include consideration of all pertinent evidence-to particularly include the evidence referenced above that was associated with the claims file prior to and after certification to the Board but not considered, as well as all evidence received pursuant to this remand. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the VAMC in Washington, D.C. all outstanding, pertinent records of evaluation and/or treatment of the Veteran since January 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information and, if necessary, authorization, to obtain additional evidence pertinent to the remaining claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate physician, in connection with his service connection claim for a low back disability. The contents of the entire, electronic claims file, (in VBMS and Virtual VA (Legacy Content Manager), to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify all back disability(ies), to include degenerative disc disease, disc bulge, and stenosis, currently present or present at any point pertinent to the current claim on appeal (even if now asymptomatic or resolved). Then, for each such diagnosed back disability, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in or is otherwise medically-related to service-specifically, the reported in-service parachute jump. In rendering the requested opinion, the examiner must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions-to include the Veteran's competent assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. To this end, the physician is advised that Veteran's service treatment records from March 1987 to April 1993 are available, but records for the periods from June 2001 to September 2001 and from January 2003 to August 2003 are unavailable due to no fault of the Veteran. Moreover, the Veteran is a recipient of the Combat Infantry Badge and a parachutist badge and report of in-service injury associated with an in-service parachute jump are deemed credible. Notably, the absence of documented evidence of diagnosis or treatment for a specific disability in or shortly after service should not, alone, serve as the sole basis for a negative opinion. In this regard, the Veteran is competent to report his own symptoms and history, as well as his reasons for not seeking treatment, and his assertions in this regard must be considered in formulating the requested opinions. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of correspondence referencing the date and time of the examination(s)-preferably, any notice(s) of examination-sent to him by the pertinent medical facility. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo VA examination or otherwise obtaining a medical nexus opinion in connection with the right knee claim, if appropriate), adjudicate the claims on appeal. If the Veteran fails, without good cause, to report to any scheduled examination(s), in adjudicating the reopened claim(s), apply the provisions of 38 C.F.R. § 3,655(b), as appropriate. Otherwise, adjudicate each claim in light of all pertinent evidence (to include all evidence added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s) since the last adjudication in the May 2011) and legal authority. 7. If any benefit(s) sought on appeal remain(s) denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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.. §§ 5109B, 7112 (2012). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs