Citation Nr: 1808967 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 10-47 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right shoulder disorder. 4. Entitlement to service connection for a left shoulder disorder. 5. Entitlement to service connection for a left eye disorder. 6. Entitlement to service connection for a lumbar spine disorder. 7. Entitlement to service connection for lumbar radiculopathy of the left leg. 8. Entitlement to an initial compensable rating for bilateral hearing loss. 9. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a left knee condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this matter for further evidentiary development in August 2017, December 2016, and October 2014. In October 2017, the Veteran underwent a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the record. The issue of entitlement to an increased rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On October 17, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran of his intent to withdraw his appeals of entitlement to service connection for a right knee disorder; a right shoulder disability; a left shoulder disability; a left eye disability; a lumbar spine disability; and lumbar radiculopathy of the left leg. 2. In a May 1974 rating decision, the RO denied entitlement to service connection for a left knee condition; the Veteran was notified in June 1974 and did not appeal this decision. 3. Evidence received since the May 1974 rating decision relates to the basis for the prior denial. 4. Resolving all reasonable doubt in the Veteran's favor, the Veteran's left knee osteoarthritis is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran regarding the issues of entitlement to service connection for a right knee disorder; a right shoulder disability; a left shoulder disability; a left eye disability; a lumbar spine disability; and lumbar radiculopathy of the left leg have been met. 38 U.S.C. § 7105(b)(2); (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The May 1974 rating decision that denied entitlement to service connection for a left knee condition is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. Evidence received since the May 1974 rating decision with regard to entitlement to service connection for a left knee condition is new and material. Thus, this new evidence warrants reopening the claim of entitlement to service connection for a left knee condition. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria to establish service connection for left knee osteoarthritis are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In the present case, the Veteran clearly expressed his intent to withdraw his appeal for entitlement to service connection for a right knee disorder; a right shoulder disability; a left shoulder disability; a left eye disability; a lumbar spine disability; and lumbar radiculopathy of the left leg at his October 2017 hearing. Consequently, the Board finds that the Veteran has withdrawn his appeals as to those issues. Hence, there remain no new allegations of errors of fact or law for appellate consideration concerning those appeals, and they are dismissed. New and Material Evidence The Veteran contends that he is entitled to reopen his claim of service connection for a left knee condition. For the following reasons, the Board finds reopening warranted. Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). An 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, VA shall reopen the claim and review the former disposition of the claim. 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(a). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). The Veteran's first claim of entitlement to service connection for a left knee condition was denied in a May 1974 rating decision. The appellant was notified in June 1974 but did not appeal the decision. Accordingly, the May 1974 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In June 2009, the Veteran filed the instant application to reopen his claim for service connection for a left knee condition. In support of his claim, the Veteran has submitted a note from his orthopedist indicating that his osteoarthritis is related to an injury incurred in service. In light of the above, the Board finds that the evidence submitted since the May 1974 rating decision, when considered with previous evidence of record, relates to previously unestablished facts necessary to substantiate the claim. As such, the evidence is new and material and warrants reopening of the claim. See 38 C.F.R. § 3.156. Service Connection The Veteran contends that he is entitled to service connection for left knee osteoarthritis. For the forthcoming reasons, the Board finds service connection warranted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the VA RO adjudicated this case as a pre-existing injury, due to the Veteran's left "trick" knee which pre-existed service. However, the Board finds the presumption of soundness applies in this case, as a "trick" knee and osteoarthritis of the knee are two separate conditions: osteoarthritis of the knee involves the degeneration of the joint cartilage and underlying bone, while a trick knee is merely a dislocated, or moving, patella. The record reveals that the Veteran suffers from osteoarthritis, related to the Veteran's in-service injury-the Veteran injured himself during a football game in November 1972; the injury required a cast and three months of rehabilitation. In his April 1974 self- report of medical history, the Veteran reported having left knee symptoms since 1970 and that it was symptomatic on occasions. During the October 2017 Board hearing, the Veteran testified that he injured his left knee in service and he has had left knee symptoms since service, which he often self-treated. In October 2017, the Veteran underwent an examination with his treating orthopedist in which the examiner confirmed the Veteran's left knee osteoarthritis and determined the Veteran's condition was related to the Veteran's in-service November 1972 injury. The examiner reviewed the Veteran's service treatment records and VA medical records. Accordingly, by resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for left knee osteoarthritis is warranted. 38 C.F.R. § 3.102 (2017); 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal for entitlement to service connection for a right knee disorder; a right shoulder disability; a left shoulder disability; a left eye disability; a lumbar spine disability; and lumbar radiculopathy of the left leg is dismissed. New and material evidence has been received and the claim for service connection for a left knee condition is reopened. Entitlement to service connection for left knee osteoarthritis is granted. REMAND The Veteran contends that he is entitled to an initial compensable rating for bilateral hearing loss. At the Veteran's October 2017 hearing, he stated his condition had worsened since his last examination in September 2009. Thus, prior to examination, an additional examination is warranted. Furthermore, the Veteran indicated at his hearing that he had not submitted all of his private medical documents to the VA. Thus, the RO should send a letter of inquiry to the Veteran, requesting the names and addresses of all of his private treating physicians in order to obtain all relevant records. Accordingly, the case is REMANDED for the following actions: 1. Send a letter of inquiry to the Veteran requesting the names and addresses of all of his private treating physicians and then request all relevant documents for those physicians. 2. Schedule the Veteran for an examination in which the examiner determines the severity of the Veteran's bilateral hearing loss. 3. Then, readjudicate the claim. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ LESLEY A. REIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs