Citation Nr: 18156235 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-53 251 DATE: December 7, 2018 ORDER Entitlement to service connection for hypertension is denied. New and material evidence having been received, the claim of entitlement to service connection for a left knee condition is reopened; to this extent, the claim is granted. New and material evidence having been received, the claim of entitlement to service connection for a right knee condition is reopened; to this extent, the claim is granted. New and material evidence having been received, the claim of entitlement to service connection for depression is reopened; to this extent, the claim is granted. REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for depression is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury, event, or disease. 2. By a January 2009 statement of the case, the RO denied the Veteran’s claims for service connection for a left knee condition, right knee condition, and depression; he was advised of the RO’s decision, and of his appellate rights. 3. The Veteran did not initiate an appeal of the RO’s January 2009 statement of the case; nor was new and material evidence received within a year of the May 2007 rating decision; thus, the May 2007 rating decision is final. 4. Additional evidence received since the January 2009 statement of the case is not cumulative or redundant of the evidence of record at the time of that decision, and relates to unestablished facts necessary to substantiate the claim for service connection for a left knee condition, right knee condition, and depression. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. Evidence received since January 2009 is new and material, and the Veteran’s claim for service connection for a left knee condition is reopened. 38 U.S.C. § 1111, 5108 (2012); 38 C.F.R. § 3.303, 3.156, 3.655 (2017). 3. Evidence received since January 2009 is new and material, and the Veteran’s claim for service connection for a right knee condition is reopened. 38 U.S.C. § 1111, 5108 (2012); 38 C.F.R. § 3.303, 3.156, 3.655 (2017). 4. Evidence received since January 2009 is new and material, and the Veteran’s claim for service connection for depression is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.303, 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from September 1984 to March 1986. These issues come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. Service Connection As discussed, entitlement to service connection requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d at 1163. There is also a rebuttable presumption of service connection for certain chronic diseases if the disease manifested to a compensable degree (a degree of 10 percent or more) within one year of separation from active service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309(a). If a chronic disease is shown in service or within the requisite time period described in 38 C.F.R. § 3.307(b), subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. A showing of continuity of symptomatology can satisfy the second and/or third elements of service connection. 38 C.F.R. § 3.303(b). 1. Hypertension The Veteran has a current diagnosis of hypertension, and therefore meets the first criterion of service connection for hypertension, a current diagnosis. However, the evidence of record does not show treatment, symptoms, or a diagnosis of hypertension during active service or within one year of active service, as the Veteran’s service treatment records and medical records are silent for any documentation of hypertension within one year of service. VA’s duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in sections 3.309, 3.313, 3.316, and 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. See 38 C.F.R. § 3.159(c)(4)(i); Paralyzed Veterans of Am. v. Secretary of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) does not conflict with § 5103A(d) and evidence of record “establishing that the Veteran suffered an event, injury, or disease in service,” is required to trigger VA’s duties pursuant to section 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary’s obligations under section 5103A to provide a Veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates “some causal connection between his disability and his military service”). As the Veteran has not shown criterion B, above, because of a lack of a manifestation in service or within a presumptive time period, VA does not have a duty to assist the Veteran in affording him a VA examination on his hypertension. Given the lack of any lay or medical evidence linking the Veteran’s claim to service, and an absence of any manifestation of the Veteran’s disability within the requisite time period for a presumptive disorder, the Board finds that the evidence of the record does not show the requisite elements for service connection, and the claim must therefore be denied. New and Material Evidence 2. Left Knee and Right Knee Conditions The Veteran contends his left and right knee condition were incurred in, or in the alternative, aggravated by his service. Under 38 U.S.C. § 5108, VA may reopen a previously and finally disallowed claim when new and material evidence is presented or secured with respect to that claim. This requires a review of all evidence submitted by or on behalf of a claimant since the final denial, regardless of whether the denial was on the merits or on procedural grounds, to determine whether a claim may be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). New evidence means existing evidence that was not previously submitted to agency decisionmakers. 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 the 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). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen the claim before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 365 F.3d 1366, 1369 (Fed. Cir. 2001). The question of whether new and material evidence has been received to reopen such a claim must be addressed in the first instance by the Board as the issue goes directly to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson, 265 F.3d at 1366; see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g 8 Vet. App. 1 (1995). If the Board finds that new and material evidence has not been received, that is where the analysis must end; thus, the RO’s reopening of a claim is not binding on the Board. Id. Turning to the evidence of record, the Veteran first filed a claim for entitlement to service connection for a bilateral knee condition in May 1986. In July 1986, the RO provided notice to the Veteran of a VA examination required to adjudicate the claim. The record shows the Veteran failed to report for a September 1986 VA examination. The Veteran did not provide any explanation or other indication of good cause for his failure to report. Thereafter, the RO considered the claim based on the evidence of record and denied the claim. The Veteran did not appeal this decision; thus, became final. The Veteran filed a second claim for entitlement to service connection for a bilateral knee condition in October 2006. In December 2006, the RO provided notice to the Veteran of a VA examination required to adjudicate the claim. The record indicates the Veteran failed to report for a December 2006 VA examination. The Veteran did not provide any explanation or indication of good cause for his failure to report. Thus, the RO considered the claim and noted that the only evidence of record indicated the Veteran’s left and right knee conditions existed prior to service and were not aggravated by his service. The Veteran did not appeal this decision; thus, it became final. The Veteran filed a claim to reopen his prior claim for entitlement to service connection for a bilateral knee condition in August 2014. In November 2014, the RO notified the Veteran of the types of information needed to reopen his previously denied claim. The Veteran submitted a December 2014 statement in support of claim, copies of private treatment records, and a signed VCAA Notice Acknowledgement. Based on the evidence of record, the RO issued an August 2015 rating decision denying the claim to reopen because the evidence did not show either his right or left knee conditions noted in service continued to the present date. Thus, the RO determined that the evidence submitted did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The Veteran filed a timely August 2016 notice of disagreement; thereafter, the RO issued an October 2016 statement of the case. The Veteran filed a timely VA Form 9, and the RO certified the appeal to the Board through a January 2017 VA Form 8. The Board finds that the evidence obtained since the final May 2007 rating decision is new as it was not of record at the time of the prior rating decision. It is material in that it presents evidence that supports the theory of continuity of symptomatology. Therefore, the claims of entitlement to service connection for a left knee condition and a right knee condition are reopened. 3. Depression The Veteran contends that his currently diagnosed depression was incurred in service. The Veteran first filed a claim for entitlement to service connection for depression in October 2006. In December 2006, the RO informed the Veteran of what information was required to adjudicate his claim; thereafter, the RO issued a May 2007 rating decision. The Veteran filed a timely April 2008 notice of disagreement. In January 2009, the RO issued a statement of the case denying entitlement as there was no evidence of depression in service, nor was there evidence the Veteran had a current diagnosis. The Veteran did not appeal this decision; thus, became final. The Veteran filed a claim to reopen his prior claim for entitlement to service connection for depression in August 2014. In November 2014, the RO notified the Veteran of the types of information needed to reopen his previously denied claim. The Veteran submitted a December 2014 statement in support of claim, copies of private treatment records, and a signed VCAA Notice Acknowledgement. Based on the evidence of record, the RO issued an August 2015 rating decision denying reopening the Veteran’s claim to entitlement to service connection. The RO determined that the evidence submitted did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The Veteran filed a timely August 2016 notice of disagreement; thereafter, the RO issued an October 2016 statement of the case. The Veteran filed a timely VA Form 9, and the RO certified the appeal to the Board through a January 2017 VA Form 8. The Board finds that the evidence obtained since the final May 2007 rating decision is new as it was not of record at the time of the prior rating decision. It is material in that it presents evidence that shows a current diagnosis, the basis for the denial in the original claim. Therefore, the claim of entitlement to service connection for depression is reopened. REASONS FOR REMAND The Veteran’s claims are remanded to provide VA examinations. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence ‘indicates’ that there ‘may’ be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination regarding VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519, 521-22 (1992). When necessary or requested, the Veteran must cooperate with the VA in obtaining evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (holding that the duty to assist is not a one-way street). When entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without “good cause,” fails to report for such examination, action shall be taken as set forth below. 38 C.F.R. § 3.655(a). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Id. The Board notes the Veteran was notified of two VA examinations for his claimed left knee condition and right knee condition, and both times failed to report and did not provide any explanation or indication of good cause for his failure to report. See September 1986 and December 2008 VA Examination Notification Letters. However, as new and material evidence has been received, the Board finds that a medical opinion is required to properly adjudicate the Veteran’s claim. Here, the Veteran has been shown to have a currently diagnosed left knee condition, right knee condition, and depression. As for an in-service event, the Veteran’s service treatment records and personnel records show notes regarding a bilateral knee condition. Accordingly, the Veteran should be scheduled for a VA examination before an appropriate examiner to determine whether his currently diagnosed left knee condition and right knee condition clearly and unmistakably existed prior to service, and if so, whether it was clearly and unmistakably not aggravated by military service. A full rationale must be provided. Additionally, the Veteran should be afforded a VA examination before an appropriate examiner to determine whether any etiological relationship exists between his currently diagnosed depression and military service. A full rationale must be provided. The matters are REMANDED for the following action: 1. Obtain all VA treatment records which have not been obtained already. A copy of any records obtained, to include a negative reply, should be included in the claims file. 2. Ask the Veteran to provide a release for relevant records of treatment from any private care provider or facility for a left knee condition, right knee condition, and/or depression, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the claims file. 3. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his left knee condition and right knee condition. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran’s physical examination, and the Veteran’s statements regarding the development and treatment of his claimed disorder, the examiner is asked the following questions: (a.) State whether a left knee condition clearly and unmistakably existed prior to service, and if yes, whether the left knee condition clearly and unmistakably was not aggravated (or permanently worsened) by service. (b.) State whether a right knee condition clearly and unmistakably existed prior to service, and if yes, whether the right knee condition clearly and unmistakably was not aggravated (or permanently worsened) by service. (c.) If the response to either question in (a) or (b) is NO, then state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current left knee condition or right knee condition is etiologically related to service. A complete rationale must be provided for any opinions expressed. If any requested opinions cannot be provided without resorting to speculation, then the examiner must explain why this is so. 4. Schedule the Veteran for an appropriate VA examination to ascertain the nature and etiology of any depression that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s depression manifested in service or is otherwise causally or etiologically related to the Veteran’s military service. 5. Readjudicate the claim after the development requested above has been completed. If any benefits sough on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ohlstein, Law Clerk