Citation Nr: 1826623 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 16-29 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a right leg disability, to include a right knee disability (hereinafter a "right leg/right knee disability"). 2. Entitlement to service connection for a right leg/right knee disability. 3. Entitlement to service connection for a right hip disability, to include as secondary to nonservice-connected right leg/right knee disability. ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Marine Corps from January 1954 to January 1956, followed by honorable active duty service with the United States Navy from February 1958 to February 1962. Additionally, the Veteran served honorably in the United States Army from February 1963 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. With specific regard to the claim for service connection for a right leg/right knee disability, by way of history, this disability was previously claimed as a right knee disability in May 1956. In an August 1956 rating decision, the RO denied service connection for a right knee condition. The Veteran did not appeal the August 1956 decision. In September 2010, the Veteran filed a request to reopen his claim for service connection for a right leg condition and indicated that this disability was originally claimed as a disability of the right knee. Thus, the Board must address the issue of whether new and material evidence has been received for the claimed right leg/right knee disability. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In so doing, the Boards looks to the evidence submitted since the last final denial of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). The evidence of record at the time of the August 1956 rating decision consisted of service treatment records, statements of the Veteran, a VA examination report, and VA treatment records. The Board notes that the Veteran was previously represented by Attorney Ralph J. Bratch. In June 2015, prior to certification of the appeal to the Board, such representation was withdrawn. The Veteran is now unrepresented. 38 C.F.R. § 20.608(a) (2017). The Board further notes that in a written statement attached to the June 2016 substantive appeal, the Veteran made reference to disabilities of the back and neck, neither of which are claims currently before the Board. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office (RO). The Veteran is advised that if he wishes to open a claim, he may do so using the prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). 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 a right leg/right knee disability and a right hip disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed August 1956 rating decision denied entitlement to service connection for a right knee disability. 2. The evidence received since the final August 1956 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a right leg/right knee disability. CONCLUSIONS OF LAW 1. The August 1956 rating decision denying the claim for a right knee disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received; the claim for service connection for a right leg/right knee disability is reopened. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As this decision reopens the previously denied claim for entitlement to service connection for a right leg/right knee disability and remands both service connection claims for additional development, discussion of the Veterans Claims Assistance Act of 2000 (VCAA) is not necessary. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Courts of Appeals for Veterans Claims (Court) has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase "raise[s] a reasonable possibility of substantiating the claim," does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen his claim for entitlement to service connection for a right leg/right knee disability. In an August 1956 rating decision, the RO denied the Veteran's claim for service connection for a right knee disability, as a VA examination conducted in July 1956 did not reveal a disability of the right knee. The Veteran did not appeal this decision or submit additional evidence within one year. Thus, the August 1956 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Since the Veteran's last prior final denial in August 1956, the Veteran submitted additional private medical records and VA treatment records. In addition, VA conducted an examination of the right knee and right leg in September 2011. The Board finds that this evidence is new, as it was not previously of record, and tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. Furthermore, this evidence is presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a right leg/right knee disability is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for a right leg/right knee disability is reopened. To that extent only, the appeal is granted. REMAND Regrettably, a remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The service treatment records reflect that the Veteran complained of right knee and right hip pain. In a November 1955 service treatment record, the Veteran complained of pain over the lateral aspect of his right knee, with no history of injury and onset of pain beginning spontaneously since July. Examination of the right knee revealed palpable or visible mass over the lateral joint line, which on manipulations produced definite cluck with associated pain over the mass that was over the lateral joint line. Incidental to the examination of the right knee, the examiner also discovered that there was associated pelvic obliquity when the Veteran walked, with a short-leg gait on the right side with a difference in length measurable to 2 centimeters (cm). The record reflects that during the pendency of the appeal, the Veteran has submitted written statements asserting his belief that the shorter length of his right leg is the cause of his right leg/right knee and right hip conditions. Furthermore, in a June 2016 statement, the Veteran indicated that if the shorter length of his right leg preexisted service, his time in the military aggravated his right leg/right knee and right hip conditions. While the medical evidence of record indicates that the Veteran's right leg is in fact shorter in length, the record does not reflect whether this condition preexisted service. If VA undertakes to provide an examination, the examination must be adequate. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The Veteran was last afforded a VA examination for the claimed right leg/right knee condition in September 2011. The examiner noted that the Veteran's left leg was 91.5 cm in length, while the right leg was 91 cm in length. Furthermore, the examiner provided a diagnosis of right knee spurring. With specific regard to the right knee, the examiner opined that the Veteran's right knee condition was less likely secondary to the treatment in service for his right leg. The examiner noted that the Veteran blamed his right knee condition on a leg discrepancy. The examiner further noted that the Veteran did have a diagnosed cyst on his right knee in 1955, but denied problems in subsequent exams. Additionally, the examiner indicated that the American Academy of Orthopaedic Surgeons (AAOS) website provides a document which shows that a less than 3 cm leg length difference cannot, with a reasonable degree of medical certainty, be the cause of increased knee, back, hip, or ankle pain. Thus, the examiner concluded that the claimed right leg/right knee and right hip disabilities were not the result of the shorter length of the Veteran's right leg. However, the examiner did not address whether these conditions were directly related to service. Furthermore, the September 2011 VA examiner did not address whether there is clear and unmistakable evidence that the shorter length of the Veteran's right leg preexisted service, and also whether this condition was not aggravated while in service. Thus, based on the foregoing, the Board finds that a new VA examination is warranted to obtain new opinions concerning direct and secondary service connection for each of the claimed disabilities, as well as an opinion addressing whether the shorter length of the Veteran's right leg preexisted service. On remand, prior to any examination, the AOJ should make appropriate efforts to ensure that all relevant outstanding private and VA treatment records are associated with the claims folder. 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. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. The Veteran should be scheduled for a VA examination before an appropriate physician to determine the etiology of his right leg/right knee and right hip disabilities. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and provide an opinion as to the following: (a) Identify all current right leg/right knee disabilities associated with the Veteran. (b) Determine whether there is clear and unmistakable evidence that the shorter length of the Veteran's right leg (or any other diagnosed right leg condition) preexisted service. Note that "clear and unmistakable" evidence means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. (c) Regardless of the conclusion to subpart (b), determine whether there is clear and unmistakable evidence that the shorter length of the Veteran's right leg was not aggravated by service (beyond the natural progress of the disease and not merely a temporary flare-up). (d) If there is not clear and unmistakable evidence that the Veteran's right leg/right knee disability preexisted service and was not aggravated by service, then the Veteran must be considered to have been sound at entry, and based upon that premise, the question to answer would be whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's right leg/right knee disability had its onset in service or is otherwise related to service. (e) Identify all current right hip disabilities associated with the Veteran. (f) Is it at least as likely as not that (50 percent probability or greater) any identified right hip disability manifested during, or as a result of, active military service? (g) If it is determined that the Veteran's right leg/right knee disability is related to service, is it at least as likely as not that (50 percent probability or greater) any identified right hip disability manifested was either caused or aggravated beyond the natural progression by the Veteran's right leg/right knee disability? If aggravation is found, what is the baseline level of disability prior to the aggravation, and to what degree of additional impairment is attributable to aggravation by the right leg/right knee disability? A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. The Veteran 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 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). ______________________________________________ M. H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs