Citation Nr: 1817685	
Decision Date: 03/23/18    Archive Date: 04/03/18

DOCKET NO.  15-00 064A	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for right knee condition.

2.  Entitlement to service connection for a right knee condition. 

3.  Entitlement to service connection for a back condition.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. Vuong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1961 to December 1964.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which in pertinent part, denied a petition to reopen a claim of entitlement to service connection for a right knee condition and denied service connection for a back condition. 

Notwithstanding any previous determination by the RO, the Board must address whether new and material evidence has been received to reopen the claim.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018.  A transcript of that hearing has been associated with the record.

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).

The issues of entitlement to service connection for back and knee condition are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The last final denial of a claim for service connection for right knee condition was an unappealed a March 1998 rating decision.
2.  Evidence received since the rating decision is new; relates to unestablished fact necessary to substantiate the claim.


CONCLUSION OF LAW

The criteria for reopening the claim of service connection for right knee have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim.  See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994).  

Service connection for right knee condition was originally denied in an unappealed August 1980 rating decision on the basis that the right knee disability was not incurred in or related to service.  The Veteran was notified of the decision in September 1980.  He did not appeal the decision and no new and material evidence was received within a year.  Thus, the August 1980 rating decision became final.  38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103.  

The Veteran sought to reopen his claim in March 1997.  In a rating decision issued in August 1997, the RO declined to reopen the claim on the basis that new and material evidence was not submitted.  The Veteran was notified of the decision in September 1997.  After additional evidence was received, the RO again declined to reopen the decision in a rating action issued in March 1998.  The Veteran was notified of this decision that same month.  He did not appeal and no additional evidence was received within a year.  Thus, the March 1998 rating decision became final.  Id.

The Veteran sought to reopen his claim for a right knee disability in July 2012.  

Evidence associated with the file since the last final determination in March 1998 includes additional VA treatment records, the Veteran's February 2018 hearing testimony, and private treatment records.  The VA treatment records show a diagnosis of right knee arthritis, which is a chronic disease.  The Veteran's testimony and private treatment records from Dr. C., supports his assertion of continuity of symptomatology since service.  As the new evidence pertains to causal nexus - an unestablished fact necessary to substantiate the claim (under the theory of chronicity and continuity of symptomatology), and raises a reasonable possibility of substantiating the claim by triggering VA's duty to assist; it is material.  For these reasons, reopening of the previously denied claim of service connection is warranted.  The reopened claim is addressed further in the remand section.


ORDER

The application to reopen the claim of service connection for right knee condition is granted and, to this extent only, the appeal is granted.


REMAND

The Veteran seeks service connection for right knee condition.  

Service treatment records from February and July 1964 show injuries to the right knee.  VA treatment records show a current diagnosis of osteoarthritis of the right knee.  The Veteran relates his right knee condition to events in service.  Private records from Dr. C. reflect treatment for right knee problems in the early 1970s.  The Veteran has not been afforded a VA examination to ascertain whether his current right knee condition is related to service.  This should be accomplished on remand.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). 

The Veteran asserts that his back disability is related to his right knee condition.  See February 2018 Board Hearing.  As the claim for back condition is intertwined with service connection for the right knee, adjudication at this time would be premature.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).
 
Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Contact the Veteran and request that he identify any further pertinent medical treatment related to his right knee and back conditions.  After receiving authorization, attempt to obtain all identified records.  Also, update the file with VA treatment records since June 2015.

If any of these records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran must be notified in accordance with 38 C.F.R. § 3.159 (e) (2017). 

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his right knee condition.  The claims file should be reviewed by the examiner.  All appropriate diagnostic testing must be conducted. 

a) The examiner should identify all current right knee disabilities.

b) The examiner is asked to state whether it is at least as likely as not (a probability of 50 percent or greater) that any of the Veteran's right knee disabilities had onset in service, or are otherwise related to service. 

c) With respect to any current diagnosis of right knee arthritis, the examiner is to indicate whether it is at least as likely as not such arthritis manifested within a year of service discharge.

The examiner is advised that the Veteran reports right knee problems since service and his assertion is found credible.  

d) If the examiner finds that the right knee disability had onset in or is etiologically related to service, the examiner is asked to state whether it is at least as likely as not that any current back disability is either caused or aggravated by the Veteran's right knee disability. 

The examiner is advised that the Veteran asserts that his back condition is due to his right knee being misaligned.  Please consider this assertion when providing an opinion, if appropriate.

In answering question (d), the examiner is advised that two opinions are required: one for proximate causation and a second for aggravation.  

The term "aggravation" means a chronic worsening of a disability beyond its natural progression.  If aggravation is found, then, to the extent possible, the examiner should establish a baseline level of severity of the back condition prior to aggravation by the right knee condition.  

The examiner must provide a rationale for each opinion given.  If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.  

3.  Finally, readjudicate the appeal.  If either of the benefits sought are not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond.

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).

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).




______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs