Citation Nr: 18151265 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 14-36 881 DATE: November 16, 2018 REMANDED Service connection for a back disability is remanded. Service connection for a right knee disability is remanded.   REASONS FOR REMAND The Veteran served on active duty from April 1976 to July 1978. This appeal comes from a February 2014 rating decision. In a February 2014 notice of disagreement (NOD), the Veteran limited his appeal to the back and right knee issues. In March 2018, the Veteran appeared at a Travel Board hearing. Subsequently, he appointed Disabled American Veterans as his representative, which had the opportunity to submit a brief in October 2018. 1. Service connection for a back disability. 2. Service connection for a right knee disability. Procedural Background and Prior Decisions The history of the case is important for context, determining whether new and material evidence is necessary to reopen a previously denied claim, and the proper date of claim. One week after service, in July 1978, the Veteran filed his initial application for benefits. This include a claim of service connection for a right knee condition (characterized as tendonitis/torn cartilage from June 1978). Ultimately, this claim was denied in a September 1978 letter for failure to report to a scheduled VA examination. This is not surprising as the correspondence and the September 1978 notification letter were mailed to an incorrect address. Education benefit records show that the Veteran informed VA that his addressed had changed from the original street mailing address in Providence, Rhode Island, to a PO Box mailing address in Providence. It is clear that VA had the correct mailing address because VA notice of benefit payment transaction forms, dated in November 1978 and December 1978, had this new PO Box address. As such, the Board finds that the September 1978 notice letter denying service connection for a right knee condition was not mailed to proper address and there was no follow up evident in the file. Therefore, that July 1978 right knee claim remained pending until the Veteran received notice. Many years later, in August 2011, the Veteran submitted another application for benefits. This included claims of service connection for a back condition and again for a right knee condition. At the top of the application, it was listed “Homeless Vet.” Later in August 2011, the RO sent a notification letter about the claims to the Veteran at the address listed on that application but it was returned as undeliverable. Various addresses were used by VA, and indicated by the Veteran, covering a series of correspondence. In a December 2011 rating decision, the RO denied both claims. Part of the reason was due to the Veteran not reporting to a scheduled VA examination. A December 2012 notice letter of that rating decision was returned from the post office in February 2012, noting the Veteran moved and that the mail was unable to be forwarded. Thus, the Veteran did not receive this notification and there should have been some follow up attempts given the address changes and knowledge that the Veteran was potentially homeless. The next correspondence is in June 2012 from the Veteran. He gave a new mailing address, inquired about a pending claim that had not been addressed, and requested the scheduling of any missed VA examinations. The RO took the June 2012 correspondence as a claim to reopen and ultimately denied the back and right knee claims in the February 2014 rating decision currently on appeal. While this is considered the correct decision on appeal, the claims are not considered to be ones to reopen from June 2012. The Veteran never received notice of either prior denial. Therefore, the Board concludes that there is a claim of service connection for a right knee condition pending since July 1978 and claim of service connection for a back condition pending since August 2011. New and material evidence is not required to reopen either claim as they are the initial claims for both conditions. Development The Veteran seeks service connection for a back disability and for a right knee disability. He maintains that his current back and right knee disabilities are related to injuries sustained during service on board the USS Valdez. In his February 2014 NOD, the Veteran stated that during serving on board the USS Valdez in 1977, while in the process of mooring the vessel in Spain, equipment malfunctioned resulting in him being slammed against an anchor on the deck, injuring his back. He added that he was taken to sick bay, and later, while descending a ladder heading to his quarters, he experienced loss of motor control of his right knee and fell from the ladder, which the corpsman suspected was a torn ligament of the right knee. He stated that he has had back and right knee pain ever since. Although the service treatment records (STRs) do not reference a back injury during service on board the USS Valdez, an April 1978 record reflects complaints of stiffness in the back, and the assessment was possible strain of the back. Further, records during service on board the USS Valdez reflect complaints of numbness of the dorsal side of right leg, noting that his knee gave out while walking in January 1977. Non-responsiveness to stimuli of the back of the right thigh and calf was reported, and the assessment was sciatic nerve damage due to trauma. In addition, STRs in March 1978 reflect complaints of a pulled muscle during physical training, with pain noted above the knee in the anterior portion of the thigh, and the assessment was strain of the right leg. Further, records reflecting complaints of right knee pain in June 1978 note decreased range of motion and slight edema around the patella, assessed as possible tendonitis and possible loose cartilage. In April 2014, the Veteran’s former representative requested that VA in turn request the ship deck logs from the USS Valdez to confirm the accident aboard the ship. In a June 2014 response to the RO’s request for deck logs for the USS Valdez in March 1977 and April 1977, the National Archives and Records Administration (NARA) stated that the USS Valdez was operating off the coast of Spain in 1977. It was noted that deck logs were voluminous, and that if the specific information being sought was identified, further assistance could be provided. As such, the RO is to provide NARA with the specifics of the asserted back injury and right knee condition, and request related records. Next, a January 2014 VA examination report notes that degenerative disc disease of the lumbosacral spine was diagnosed in 1998, and the examiner opined that it was at least as likely as not that the Veteran’s degenerative arthritis of the spine and right knee subluxation are related to service. In an addendum, however, the examiner stated upon further review of the record, it was less than likely that the right knee and back disorders are related to service, noting the initial post-service evidence of back and knee conditions was after the Veteran’s involvement in several motor vehicle accidents (MVAs), the first of which was noted to be in April 2003. In view of the additional development to be undertaken on remand, as well as additional evidence associated with the claims file since the VA examination in January 2014, the Board finds that a new VA examination is warranted with another medical opinion. Moreover, at the March 2018 Board hearing, the Veteran stated that he is receiving Social Security Administration (SSA) disability benefits because of his back. As the SSA records may be relevant to the appeal, they should be requested and associated with the claims file. Lastly, in light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Contact NARA and/or any other appropriate facility, to determine whether there are deck logs or other records pertaining to a back injury and/or a right knee disorder, other than those already associated with the file, during the Veteran’s service on board the USS Valdez in 1977. Specific details are to be included in any request, to include those noted in the Veteran’s February 2014 NOD. 2. Contact SSA and request a copy of the Veteran’s SSA disability award records and associate them with the claims file. 3. Obtain VA treatment records dated since March 2018. 4. After completion of the above, schedule the Veteran for a VA examination by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner is to conduct all indicated tests. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any current back and/or right knee disability had its onset during, or is otherwise related to, service. Consideration should be given to the Veteran’s lay statements that he fell off a ladder during service on board the USS Valdez in 1977, that was treated in sick bay for back and right knee pain, and that he has had back and right knee pain since service. A rationale should be provided for any opinion rendered. Any rationale that attributes the current conditions to post-service MVAs should explain the medical reasoning as to why the conditions could not be related to injuries that had occurred prior to the MVAs, such as those contended by the Veteran. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor