Citation Nr: 1807860 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-28 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for right knee chondromalacia patella. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran had active service from November 1964 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA) which determined that new and material evidence had been received to reopen the claim of service connection for right knee chondromalacia patella; denied that claim on the merits; and denied service connection for a low back disability, a right shoulder disability, and a left shoulder disability. As to the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for right knee chondromalacia patella, the Board is required to consider the question of whether new and material evidence has been received to reopen the claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). 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). FINDINGS OF FACT 1. The claims record was lost and partially rebuilt. The prior final rating decision denying right knee chondromalacia patella, the notice thereof to the Veteran, and the documentation upon which it was based are no longer of record. 2. The additional evidence received since the prior final rating decision that denied service connection for right knee chondromalacia patella is new and material. CONCLUSIONS OF LAW 1. The prior rating decision denying service connection for right knee chondromalacia patella is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence to reopen the claim for service connection for right knee chondromalacia patella has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that service connection for a recurrent right knee disability is warranted as the claimed disability is related to the service-connected left total knee replacement residuals. A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103 (2017). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. 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 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. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board observes that the procedural history of the claim of service connection for right knee chondromalacia patella cannot be determined due the loss of and subsequent incomplete reconstruction of the claims record. The September 2013 rating decision, which reopened and denied service connection for the right knee disability on the merits, notes that service connection for right knee chondromalacia patella had been initially denied in August 1996. The RO stated that the "original claims file was lost in 2005 and therefore we no longer have a copy of your service treatment records or other information such as previous rating decisions before August 8, 1996." The cited August 1996 rating decision itself is not of record. It is therefore not evident when the last prior final rating decision denying service connection for a right knee disability was issued. In August 2009, the Board granted service connection for left total knee replacement residuals including arthritis. In a January 2012 informal application to reopen the claim of service connection for a right knee disability, the Veteran conveyed that his February 2011 right total knee replacement was secondary to the service-connected left total knee replacement residuals. Notwithstanding the fact that the specific date of the prior final rating decision denying service connection for right knee chondromalacia patella and the evidence upon which that rating decision was made cannot be determined due to the loss of the record and its incomplete reconstruction, the Board finds that the January 2012 informal application to reopen the claim of service connection for a right knee disability post-dates any prior relevant final rating decision and is of such significance that it raises a reasonable possibility of substantiating the claim for service connection. The document raises a theory of entitlement which did not exist prior to the Board's grant of service connection for left total knee replacement residuals and is presumed credible solely for the purpose of determining whether it is material. As new and material evidence has been received, the claim of entitlement to service connection for right knee chondromalacia patella is reopened. ORDER New and material evidence having been received, the claim service connection for right knee chondromalacia patella is reopened. To that extent only, the claim is allowed. REMAND The Veteran asserts that service connection for a right knee disability is warranted secondary to the service-connected left knee disability. A July 1987 VA examination report states that the Veteran walked with a slight limp favoring the left leg. An August 1991 VA examination report shows that the Veteran was found to have a "definite though slight limp." The report of a June 2013 VA knee examination states that the Veteran was diagnosed with right knee degenerative arthritis with arthroplasty. The examiner opined that "it is less likely the Veteran's right knee condition, arthritis and TKA was due to or caused by, aggravated beyond its normal progression, or the result of his service-connected left knee total knee replacement." The VA physician's assistant commented that "available evidence indicates that an injury in one extremity rarely causes a major problem in the opposite or uninjured extremity except when damage to the leg results in a major displacement of the center gravity of the body while walking, significant shortening of the injured limb and the abnormal gait pattern has been continually present for an extended period of time." The examiner did not note or otherwise address the VA examination documentation stating that the Veteran walked with a limp due to a service-connected left knee disability. Further, the examiner did not clarify why the Veteran's knee disabilities did not constitute a "rare" exceptional case wherein an injury involving one lower extremity affected the opposite lower extremity. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtain an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the June 2013 VA examination report, the Board finds that further VA knee evaluation is needed. The June 2014 statement of the case states that the Veteran was afforded a June 2, 2014, VA evaluation which addressed the lower back and the shoulders. The June 2014 VA evaluation is not currently of record. Further, clinical documentation dated after April 2014 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claims. See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested. 1. Contact the Veteran and request that he provide information as to all treatment of the right knee, lumbar spine, and shoulder disabilities after April 2014, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record any VA medical records for examination and treatment provided after April 2014 not already of record, to specifically include the June 2014 VA evaluation addressing the lower back and the shoulders. 3. Schedule the Veteran for a VA knee examination conducted by a medical doctor to assist in determining the nature and etiology of any identified right knee disabilities and any relationship to active service or service-connected disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. Service connection is currently in effect for left total knee replacement residuals, including arthritis. The examiner should: (a) Diagnose all right knee disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified right knee disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any right knee disability is due to or was caused by a service-connected left knee disability or an altered gait due to a left knee disability. (d) Opine whether it is at least as likely as not (50 percent probability or greater) that any right knee disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) due to a service-connected left knee disability or an altered gait due to a left knee disability. 4. Then readjudicate the claims on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs