Citation Nr: 1808047 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-08 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the residuals of a right knee injury. 2. Entitlement to service connection for the residuals of a right knee injury. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The appellant served on active duty for training from July 1977 to October 1977. He also served in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a March 2014 substantive appeal the claimant raised contentions to the effect that service connection was warranted for a foot disability. That claim has not been certified to the Board on appeal nor has it otherwise been developed for appellate purposes. Therefore, the Board has no jurisdiction over that claim and it will not be considered below. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.101 (2017). However, it is referred to the RO for appropriate action. The issue of entitlement to service connection for the residuals of a right knee injury is addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. In an unappealed August 2009 rating decision VA found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for the residuals of a right knee injury. 2. Evidence associated with the record since the August 2009 rating decision is neither cumulative nor redundant and, by itself or in connection with evidence previously assembled, and relates to an unestablished fact or raises a reasonable possibility of substantiating the claim of entitlement to service connection for the residuals of a right knee injury. CONCLUSIONS OF LAW 1. The August 2009 rating decision which declined to reopen the claim of entitlement to service connection for the residuals of a right knee injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been submitted to reopen the appellant's claim of entitlement to service connection for the residuals of a right knee injury. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Active military service includes active duty, or any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24) (2012); 38 C.F.R. § 3.6(a) (2017). Active military service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). A review of the record discloses that this is not the appellant's first claim of entitlement to service connection for residuals of a right knee injury. In a September 2002 rating decision VA held that there was no evidence that the appellant had been performing active duty, active duty for training, or inactive duty training. VA noted that the appellant's right knee was treated in August 1978 and May 1982, however, the RO found no evidence of a chronic, identifiable right knee disability. The appellant was notified of that decision and of his appellate rights, however, he did not file a notice of disagreement with which to initiate an appeal. Therefore, that decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). In August 2009 a claim to reopen the issue of entitlement to service connection for residuals of a right knee injury was denied. The appellant did not thereafter perfect a timely appeal. As such, the August 2009 rating decision is also final. Id. Generally, a claim which has been denied in a final rating decision may not thereafter be reopened and allowed, and a claim based upon the same factual basis may not be considered. 38 U.S.C. § 7105. The exception to this rule is 38 U.S.C. § 5108 which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA shall reopen the claim and review the former disposition of the claim. When a veteran seeks to reopen a final decision based on new and material evidence, the Board must first determine whether the veteran has, in fact, presented new and material evidence under 38 C.F.R. § 3.156. Evidence offered by a claimant to reopen a claim is presumed credible for the limited purpose of ascertaining its materiality. Justus v. Principi 3 Vet. App. 510 (1992). New evidence means existing evidence 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 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. Evidence added to the record since the RO's September 2002 decision includes a July 2011 statement from J. P., M.D., that the appellant now has osteoarthritis of the right knee and a possible meniscal tear. Dr. J.P. further opined that these disabilities were related to an injury in service. Such evidence is new in the sense that it has not previously been before VA. This evidence is also material in that it shows that the appellant now has a chronic identifiable right knee disability which may be related to service. This evidence is neither cumulative nor redundant of the evidence of record in September 2009 and, when considered with the evidence previously of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for the residuals of a right knee injury. Therefore, the claim is reopened. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for the residuals of a right knee injury is reopened. REMAND Because new and material evidence is presented, the Board will proceed to evaluate the merits of the claim only after insuring that the duty to assist the appellant in the development of his claim has been fulfilled. See Elkins v. West, 12 Vet. App. 209 (1999). Initially, as noted above, the appellant's service is shown to include National Guard service in addition to his period of active duty for training from July 1977 to October 1977. Given service treatment record references to right knee problems in August 1978 and May 1982, it becomes necessary to determine the status of the appellant's service at those times. Simply put, determining whether service connection may be granted first requires a determination of the appellant's status. That is, was the appellant on active duty, active duty for training or inactive duty training. As the appellant's service dates have never been clarified further development is required. [Parenthetically, it is well to note that the evidence does not show that the appellant is currently "a veteran" as that term is defined at 38 U.S.C. § 101(2) (2012).] Further, although Dr. P. suggests that the appellant's right knee degenerative joint disease and possible meniscal tear are related to an injury in service, he did not provide rationale for his opinion. Notably, the evidence shows that the appellant has not been examined by VA to determine the nature and etiology of any right knee disability found to be present. Accordingly, the case is REMANDED to the Agency of Original Jurisdiction (AOJ) for the following action: 1. The AOJ should contact the appropriate service department and/or record storage facility to include, but not limited to, the National Personnel Records Center, any appropriate National Guard office, the Florida Adjutant General's Office, as well as the Defense Finance and Accounting Service, and request that they verify each and every period of the appellant's service, This specifically includes, for each and every period, classifying whether the service was active duty, active duty for training, or inactive duty for training. The Board particularly seeks, but does not limit this request to, a determination of the appellant's status in August 1978 and May 1982. A statement of retirement points earned by the appellant will not satisfy this request. If it is necessary to contact the Defense Finance and Accounting Service to secure this information, that agency must review the various pay accounts to determine the account from which the appellant was paid for each period of service. (i.e., What service periods were paid from an account designated to pay for active duty service? Active duty for training? Inactive duty service? Etc.) Upon receipt of this information the RO must then prepare a report detailing the dates of any active duty service, active duty for training, and inactive duty training performed by the appellant. This report must be added to the appellant's VBMS file. 2. Contact the National Personnel Records Center and any other appropriate source, to include the Florida Adjutant General and request the appellant's complete service treatment and personnel records. This specifically includes any records associated with the appellant's service in August 1978 and May 1982. 3. Thereafter, schedule the appellant for a VA examination to determine the nature and etiology of any diagnosed right knee disability. The appellant's Virtual VA and VBMS files, as well as a copy of this remand, must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must be provided, and must review, a copy of the report prepared by the RO in compliance with first directive noted above. If a right knee disorder is diagnosed, the examiner must identify and explain the elements supporting each diagnosis. The examiner must then, considering the dates of the appellant's service as noted in the report prepared by the RO in response to directive one, render an opinion as to whether it is at least as likely as not (at least a 50/50 chance) that any currently diagnosed right knee disorder is the result of any injury in service. If so, when did the injury occur? The examiner must address the role, if any, that injuries sustained in August 1978 and May 1982. may have played in the etiology of any currently diagnosed right knee disorder. A complete rationale for any opinions expressed must be provided. If the examiner cannot offer an opinion without resorting to speculation, he or she must state so, and explain why speculation is required to reach the opinion offered. 4. A copy of the notice informing the appellant of the date, time, and location of the examination must be associated with the claims folder. If that notice is returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 5. The appellant is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2017). 6. Thereafter undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for the residuals of right knee injury. If the benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative must be furnished a supplemental statement of the case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The appellant need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matter the Board has remanded to the AOJ. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs