Citation Nr: 19167635 Decision Date: 09/03/19 Archive Date: 09/03/19 DOCKET NO. 16-01 094 DATE: September 3, 2019 ORDER The application to reopen the claim of entitlement to service connection for a bilateral knee disability is granted. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to an increased rating in excess of 0 percent for right ear hearing loss is remanded. Entitlement to service connection for bilateral pinch callus formation is remanded. Entitlement to service connection for inguinal hernia is remanded. Entitlement to service connection for bilateral hallux valgus is remanded. Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for central annular tear at L5-S1 (claimed as low back condition) is remanded. FINDINGS OF FACT 1. In a February 1976 rating decision, the RO originally denied the claim for entitlement to service connection for a bilateral knee disability because the evidence showed no link to service. 2. Evidence received since the February 1976 rating decision relates to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for a bilateral knee disability. CONCLUSION OF LAW Evidence received since the final February 1976 rating decision is new and material and the application to reopen the claim for entitlement to service connection for a bilateral knee disability is granted. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1974 to January 1976. This matter is on appeal from a rating decision dated August 2011. The Board finds that a claim to reopen the issue of entitlement to service connection for left ear hearing loss has been raised by the Veteran. See June 2013 Correspondence. Given that this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. Thus, it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2018). New and Material Evidence 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 and material evidence is defined as evidence not previously submitted to agency decision makers that bear directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156 (c). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). However, in this case no new service department records have been submitted that are relevant to the claimed disability discussed herein. As such, new and material evidence is required to reopen the Veteran’s previously denied service connection claim for a bilateral knee disability. 1. The application to reopen the claim of entitlement to service connection for a bilateral knee disability is granted. In a February 1976 rating decision, the RO originally denied the claim for entitlement to service connection for bilateral knee chondromalacia in part because the evidence showed no link to service. The Veteran sought to reopen his claim for entitlement to service connection for bilateral knee chondromalacia. Evidence received since the final February 1976 rating decision includes a negative VA nexus opinion for the claim dated June 2012. See June 2012 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire. The Board finds the evidence new as it was not previously submitted to agency decision makers. The evidence is also material as it addresses the previously unestablished fact. It is not redundant and, in the very least, when considered with the evidence of record, would trigger VA’s duty to assist by providing a medical opinion, which might “raise a reasonable possibility of substantiating the claim.” See Shade, 24 Vet. App. at 110. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee disability is remanded. A review of the record shows the Veteran had undergone a VA joint examination on May 25, 2011 and that an etiology opinion on the Veteran’s knee disabilities was rendered based on that report. See November 2015 Statement of the Case. However, a copy of the examination report and opinion has not been associated with the claims file and it is needed to properly adjudicate the claim. See May 2011 VA medical record file (file indicating that a May 25, 2011 Compensation & Pension Exam may not be viewed). Therefore, the claim must be remanded to obtain this examination report. Additionally, the Veteran stated that he has had knee pain since he was 10 years old and that he was told this was growing pains. See June 2012 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire. His entrance examination is relevant; however, his entrance examination is not of record. Therefore, upon remand, it must also be obtained. Furthermore, the Veteran was most recently afforded a VA examination in June 2012. See June 2012 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire. The examiner opined that the Veteran’s current knee strain is less likely as not incurred in or caused by active service and it is not the same condition diagnosed in service. The Board finds this opinion wholly inadequate as the examiner failed to address the Veteran’s current diagnosis of chondromalacia (see Capital Health Plan medical records showing a diagnosis of chondromalacia). Moreover, the examiner based his negative etiology opinion solely on the lack of concurrent medical records while additionally disregarding the Veteran’s lay statements, in which he reports that he was experiencing knee pain throughout service and to the present day. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding a medical examination inadequate where the examiner “impermissibly ignored the appellant’s lay assertions that he had sustained a back injury during service”). Therefore, upon remand, a new examination and etiology opinion must be obtained as well. 2. Entitlement to an increased rating in excess of 0 percent for right ear hearing loss is remanded. A review of the record shows the Veteran had undergone a VA hearing examination on January 31, 2011. See November 2015 Statement of the Case. However, a copy of that examination has not been associated with the claims file. See January 31, 2011 VA medical record file (indicating that a January 31, 2011 Compensation & Pension Exam may not be viewed). Therefore, the claim must be remanded to obtain this examination report. 3. & 4. & 5. & 6. & 7. The claims for entitlement to service connection for bilateral pinch callus formation, for inguinal hernia, for bilateral hallux valgus, for bilateral pes planus, and for central annular tear at L5-S1 (claimed as low back condition) are remanded. In a January 2013 rating decision, the RO denied entitlement to service connection for bilateral pinch callus formation, for inguinal hernia, for bilateral hallux valgus, for bilateral pes planus, and for central annular tear at L5-S1 (claimed as low back condition). The Veteran timely filed what the Board construes as a notice of disagreement to that rating decision in June 2013. However, to date, the AOJ has not provided a Statement of the Case (SOC) for these issues. Accordingly, remand is necessary in order to afford the Veteran an SOC pertaining to these specific issues. Manlicon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA medical records, including copies of the May 25, 2011 VA Joints Compensation & Pension Exam and the January 31, 2011 VA Hearing Loss Compensation & Pension Exam. 2. Associate with the claims file any outstanding service records, including the Veteran’s entrance examination. 3. After steps 1 and 2 are completed, schedule the Veteran for a VA examination to ascertain the etiology of the Veteran’s bilateral knee disability. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner should also be aware that in rendering an opinion, it must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. The AOJ should also furnish the Veteran an SOC regarding the claims for entitlement to service connection for bilateral pinch callus formation, for inguinal hernia, for bilateral hallux valgus, for bilateral pes planus, and for central annular tear at L5-S1 (claimed as low back condition). Advise him of the time limit for perfecting the appeal of this claims and that the issue will NOT be returned to the Board for appellate consideration following the issuance of the SOC UNLESS he perfects his appeal WITH THE SUBMISSION OF A VA FORM 9. 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. Yvette R. White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.