Citation Nr: 1815463	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  14-04 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
 in Winston-Salem, North Carolina


THE ISSUES

1. Whether new and material evidence to reopen a claim for service connection for left knee disability has been received y.

2. Entitlement to service connection for left knee disability.


REPRESENTATION

Appellant represented by:	North Carolina Division of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Christopher Gannon, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty in the Marine Corps from March 1981 to March 1984.

This appeal to the Board of Veterans' Appeals (Board) arose from a May 2011 rating decision in which the RO declined to reopen a previously denied claim for service connection for a left knee disability. In May 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in November 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2014. 

In April 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file.

As noted, the RO declined to reopen the previously denied claim. However, regardless of the RO's actions, the Board has a legal duty under 38 C.F.R. §5108   and 7104 (2017) to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See, e.g., Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the claim has been received - and, in view of the Board's favorable decision on the request to reopen - the Board has characterized the appeal as now encompassing both matters set forth on title page.

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems.  

The Board's decision on reopening the claim for service connection for a left knee condition is set forth below. The reopened claim for service connection is addressed in the remand following the order; this matter is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required.


FINDINGS OF FACT

1. All notification and development actions needed to fairly adjudicate each matter herein decided have been accomplished.

2. In a December 2009 rating decision, the RO denied service connection for a left knee disability.  Although notified of the denial in a letter also dated in December 2009, the Veteran did not appeal the denial, and no pertinent exception to finality applies.

3. Since the RO's December 2009 denial,  additional evidence has been associated with the claims file that is not duplicative or cumulative of evidence previously of record, and that relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1. The December 2009 rating decision in which the RO denied the Veteran's claim for service connection for a left knee condition is final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2. As pertinent evidence received since the December 2009 denial is new and material, the criteria for reopening the claim for service connection for a left knee condition  are met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

At the outset, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a).

Given the favorable disposition of the Veteran's request to reopen the claim for service connection for a left knee disability the Board finds that all notification and development actions needed to fairly adjudicate this matter has have been accomplished.

Under the legal authority in effect at the time of the prior denial and currently, service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d).

The Veteran's claim for a left knee condition  was initially denied in a December 2009 RO decision. The evidence then of record consisted of service treatment records (STRs), which note an in-service left knee injury and related treatment for that injury in October 1983. Those records also document that the Veteran was in a car accident in October 1983 in Palm Springs, California while he was on active duty, and sustained a knee injury that required treatment by civilian and military providers. Also of record were post-service VA medical records, to include the report of a VA examination in October 2009 detailing a diagnosis of left knee arthralgia, and a treatment record documenting reports of left knee pain and laceration repair in February 2009. In the December 2009 denial, the RO found that the available evidence regarding the knee condition did not establish a link or nexus to military service. 

Although notified of the RO's denial in a December 2009 letter, the Veteran did not initiate an appeal. See 38 C.F.R. § 20.200. Moreover, no new and material evidence was received within the one-year appeal period, nor were additional, relevant service records, warranting reconsideration of the claim, received at any time thereafter. See 38 C.F.R. § 3.156 (b) and (c). The RO's December 2009 denial of this claim is therefore final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

In September 2010, the Veteran filed a request to reopen his previously denied claims for service connection for a left knee disability in conjunction with a new claim for service connection for a left knee scar. For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers, and "material" evidence as 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 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 determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material.

The Board notes that 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). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See id. at 118, 124   (Lance, J. concurring).

The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the December 2009 RO decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).

Pertinent evidence added to the claims file since the final, December 2009 RO decision include the report of January 2011 documenting the presence of a left knee scar stemming from the same October 1983 injury the Veteran argues is the origin of his related left knee condition for which service connection was denied in December 2009. The Veteran was granted service connection for the left knee scar in a May 2011 rating decision. The Veteran also submitted a lay statement from his wife documenting continuous symptoms of left knee symptoms since service, and a May 2017 private treatment record from an internal medicine physician reflecting an assessment of  tricompartmental osteoarthritis of the left knee.

Also, during an April 2017 Board hearing, the Veteran testified that that he first had knee problems when he was in the Marine Corps at Twentynine Palms, California. He testified that he was ruck marching there "a lot." The Veteran testified that he injured his left knee in a vehicle accident while he was off-duty and that as a result, he required hospitalization and was on sick call for several months after the accident. Furthermore, the Veteran testified that he required surgery on his knee. The Veteran testified that as a result of the vehicle accident, he recalls that he "tore several ligaments in my knee and it was sewn back together..." The Veteran testified that he has had continuous pain in the left knee since his March 1984 discharge to the present, having seen several private physicians who advised him that he had "bone rubbing" and advised him to wear a knee brace. The Veteran's wife also submitted a statement to the Board in June 2017 which corroborated the Veteran's testimony, stating that she knew he did not have knee problems before service, but that he has had problems with his knees since discharge. She stated that he experienced severe pain in his left knee after discharge, causing him to take daily medication.

The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for a left knee disability. The lay statements from the April 2017 hearing in particular, wherein the Veteran testified to decades of continuous symptoms of a knee condition, the Veteran's wife's corroborating statement from June 2017, as well as the May 2017 private treatment record showing a diagnosis of tricompartmental osteoarthritis, provide a basis for reopening the claim for service connection for a left knee disability. The evidence is both "new" because it was not of record at the time of the December 2009 RO rating decision, and is not duplicative or cumulative of evidence previously of record.  The evidence is also "material" because it relates to unestablished facts necessary to substantiate the claims-specifically, whether the Veteran has  current, chronic left knee disability, and whether such disability had its onset in or is otherwise medically related to service.

Given the evidence documenting a current diagnosis of left knee disability, the fact that he RO has acknowledged that the Veteran has a service-connected scar stemming from the same incident that the Veteran argues was the cause of his current left knee disability, coupled with his hearing testimony, his wife's lay statement, and medical records (both from the VA and from private providers) documenting a reported history of f continuous symptoms and treatment for a left knee condition from 1983 to the present, the Board finds that, when  the lay assertions are presumed credible, the evidence  provides a reasonable possibility of substantiating the claim.   See Shade, supra.

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a left knee condition are met. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156.


ORDER

As new and material evidence to reopen the claim for service connection for a left knee condition has been received, to this limited extent, the appeal is granted.


REMAND

Although the Board regrets the additional delay, a review of the claims file reveals that further AOJ action on the remaining claim on appeal is warranted.

As noted above, the Veteran contends that his left knee condition was incurred as a result of his military service, specifically, that his current left knee condition is caused by the injury he received in an automobile accident in October 1983 while he was stationed at the Marine Corps Air Ground Combat Center in Twentynine Palms, California. His service treatment records reflect treatment in October 1983 and the following months for a left knee injury. In testimony to the Board in April 2017, the Veteran stated that he remembers that he "tore several ligaments" in his knee and that he has experienced continuous left knee pain since he was discharged. The Veteran's testimony was corroborated by his wife, who submitted a statement to the Board in May 2017 detailing her husband's continuous knee problems since discharge.

Although there is no clear evidence that the AOJ reopened the previously denied claim, a VA examination to obtain medical information as to diagnosis and etiology was, nonetheless, arranged.  In a September 2013 VA examination report, the examiner opined that the claimed condition is less likely than not incurred by or caused by the claimed in service injury. The examiner opined that the Veteran's current left knee condition is unrelated to his military service. The examiner's rationale was that the injury was not internal in nature, and that there was no evidence of joint or other internal derangement. The examiner also reasoned that there was no medical documentation that the Veteran was treated for a chronic of continuing left knee condition in the proximate, post-discharge period, and that there is no documentation of any left knee problems until approximately August 2008.

However, the Board finds that the medical evidence of record does not sufficiently resolve questions as to the nature of  current left knee disability and its relationship, if any, to service.  On the question of diagnosis, while a private provider has diagnosed the Veteran with osteoarthritis, as noted above, the VA examiner found no evidence of joint or other internal derangement-although such conclusion does not appear to have been based on current x-rays.  Moreover, on the question of medical nexus, in providing the etiology opinion, the September 2013 VA examiner did not adequately consider the Veteran's contentions of continuous symptoms of knee pain since discharge, as evidenced by his lay statements provided in testimony before the Board, which were corroborated by his wife's lay statements. Moreover, the VA examiner's negative nexus opinion appears to be based on the lack of documentation of in-service and post-service treatment, and it does not appear that the examiner took into consideration the Veteran's assertions as to experiencing associated in-service and immediate-post-service symptoms, but not seeking treatment. A medical opinion based solely on the absence of documentation in the record is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

Hence, further medical development of this claim  is warranted. See 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination or to otherwise obtain an opinion when developing a service connection claim, it must ensure that one is provided or obtained that is adequate for purposes of the determination being made).

Accordingly, on remand, the AOJ should arrange for the Veteran to undergo VA examination of his left knee by an appropriate physician. The Veteran is hereby advised that failure to report for any scheduled examination, without good cause, may well  result in denial of the reopened claim. See 38 C.F.R. § 3.655(b) (2017). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any correspondence referencing the date and time of the examination-preferably, any notice(s) of examination-sent to him by the pertinent medical facility.

Prior to undertaking action responsive to the above, to ensure that all  due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all  outstanding, pertinent records, to include records of VA evaluation and/or treatment of the Veteran since September 2013,

The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim remaining on appeal (particularly, as regards private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1) (2012); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period).

Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2017).

The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal.

Accordingly, this matter is hereby REMANDED for the following action:

1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran since September 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file.

2. Send to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the service connection claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) record, to -particularly, complete medical records from Dr. C.M. in Matthews, N.C.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3. If the Veteran responds, obtain all identified evidence not currently of record following the procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

5. After all records and/or responses are associated with the claims file, arrange to for the Veteran to undergo a VA left knee examination, by an appropriate physician, to obtain information as the nature and etiology of all current left knee disability(ies).

The contents of the entire, electronic claims file (in VBMS and Virtual VA (Legacy Content Manager), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented medical history and assertions. 

All indicated tests and studies, to include x-rays to confirm or rule out arthritis,  should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail.

 
The examiner should clearly identify all diagnosed disability(ies) associated with the left knee currently present, or present at any time pertinent to the claim on appeal (even if now asymptomatic or resolved).

Then, with respect to each such diagnosed left knee disability,  the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the d disability had its onset during active duty service or is otherwise medically related to such service, to include injury therein . 

In addressing the above, the examiner must specifically consider and discuss  all medical and other objective evidence of record, to include the service treatment records documenting the Veteran's knee injury and subsequent treatment after October 1983, the September 2013 VA opinion, and the May 2017 private opinion,

The examiner must also consider and discuss all lay assertions, to include the Veteran's Board hearing testimony y and the corroborating statement from his wife describing a continuity of symptoms since military service, and that he experienced torn ligaments that required repair.

Notably, the absence of documented evidence of a specific diagnosis and/or associated symptoms in service should not, alone, service as the sole basis for a negative opinion. 

In this regard, the examiner is advised that the Veteran is competent to report his symptoms and history, and his wife is competent to report matters within her own personal knowledge, to include symptoms observed and events experienced; such  reports should be specifically acknowledged and considered in formulating opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. 

All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided.

6. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy of correspondence referencing the date and time of the examination-preferably any notice(s) of examination-sent  to him by the pertinent medical facility

7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

8. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal.

If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the reopened claim, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate.

Otherwise, adjudicate the service connection claim, in the merits, in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA (Legacy Content Manager) file(s)incae the last adjudication) and legal authority.

9. If the benefit sought on appeal is denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them an e appropriate time period for response.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims 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. §§ 5109B, 7112 (2012).




______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs