Citation Nr: 20081007 Decision Date: 12/28/20 Archive Date: 12/28/20 DOCKET NO. 17-55 968 DATE: December 28, 2020 ORDER As new and material evidence to reopen a claim of entitlement to service connection for a right knee disability has been received, to this limited extent, the appeal as to this matter is granted. As new and material evidence to reopen a claim of entitlement to service connection for a left knee disability has been received, to this limited extent, the appeal as to this matter is granted. REMANDED The claim of entitlement to a disability rating higher than 10 percent for service-connected gastroesophageal reflux disease (GERD) is remanded. The claim of entitlement service connection for a right knee disability is remanded. The claim of entitlement service connection for a left knee disability is remanded. FINDINGS OF FACT 1. In a February 2012 rating decision, the agency of original jurisdiction (AOJ) denied the Veteran’s original claims for service connection for right and left knee disabilities. Although the Veteran perfected an appeal of the denials of these claims, after issuance of a November 2013 statement of the case (SOC), he subsequently withdrew his appeal in May 2017, prior to the promulgation of a Board decision. 2. New evidence associated with the claims file since the February 2012 denials relates to unestablished facts necessary to substantiate the service connection claims for right and left knee disabilities, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The February 2012 rating decision denying the Veteran’s service connection claims for right and left knee disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. As additional evidence received since the February 2012 denials is new and material, the criteria for reopening the service connection claims for right and left knee disabilities are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1991 to June 2011. This appeal before the Board of Veterans’ Appeals (Board) arose from April 2016 and May 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the April 2016 rating decision, the RO, inter alia, denied entitlement to a disability rating higher than 10 percent for the Veteran’s GERD. The Veteran filed a notice of disagreement (NOD) in May 2016, the AOJ issued a statement of the case (SOC) in September 2017, and the Veteran filed a substantive appeal (via VA Form 9, Appeal to the Board of Veterans’ Appeals) in October 2017. In the May 2018 rating decision, the RO declined to reopen the Veteran’s previously denied service connection claims for right and left knee disabilities. The Veteran filed an NOD in August 2018, the AOJ issued an SOC in July 2019, and the Veteran filed a substantive appeal (via VA Form 9, Appeal to the Board of Veterans’ Appeals) in August 2019. In March 2020, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Regarding characterization of the matters on appeal, with respect to the right and left knee disability claims, it is noted that, regardless of the RO’s actions, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied service connection claim on appeal. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the current claims has been received—and, in view of the Board’s favorable decision to reopen the claims, as explained below—the Board has characterized those portions of the appeal involving the right and left knee disabilities as encompassing both a request to reopen the claims, and the underlying service connection claims, on the merits. Request to Reopen Under legal authority in effect at the time of the prior denial and currently, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the February 2012 rating decision, the AOJ denied the Veteran’s original service connection claims for right and left knee disabilities. Relevant evidence of record at the time of that decision consisted of the Veteran’s service treatment records (STRs) (which reference left knee bruising in July 1991, and note a complaint of left knee pain in May 2002); and a June 2011 VA-contracted examination report (which included findings that the Veteran did not have a knee disability diagnosis of either knee). The claims were denied on the basis that the evidence did not show that the Veteran either had a right or left knee condition in service, or that he had been clinically diagnosed with a right or left knee condition. The Veteran was notified of the February 2012 denial in a March 2012 letter. He timely appealed the February 2012 denial by filing an NOD in April 2012. Thereafter, he filed a timely substantive appeal (via a VA Form 9) following issuance of a November 2013 SOC. However, his representative subsequently withdrew from appeal the service connection claims for right and left knee disabilities in a May 2017 letter. The Veteran did not reinitiate the appeals process or submit a new claim until the filing of an April 2018 petition to reopen the claims. Therefore, the AOJ’s February 2012 denial of the right and left knee claims is final as to the evidence then of record (and, at the time of the November 2013 SOC issued furtherance of that subsequently withdrawn appeal) and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(a). 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). 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 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). 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). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Id. Additional evidence pertinent to the previously denied service connection claims for right and left knee disabilities includes VA treatment records dated through July 2019 (which reflect ongoing complaints of increasing bilateral knee pain, and an imaging study finding of minimal right knee degenerative changes); and the transcript from the Veteran’s March 2020 Board hearing (wherein he testified as to having bilateral knee problems in service that began early in his military career, and that he believed his knee problems were the result of working on airplanes for 20 years, which required him to spend a lot of time in a kneeling position). The Board finds that the above-described evidence is “new” in that it was not previously before decision makers, and is not cumulative or duplicative of evidence previously of record. The evidence is also “material” in that it is relevant to the service connection claims for right and left knee disabilities, as it provides evidence of ongoing treatment for bilateral knee pain, a findings of right knee degenerative changes, and includes the Veteran’s detailed contentions as to the onset of his bilateral knee pain during service, as a result of spending extensive time in a kneeling position working on airplanes. Thus, the new evidence tends to abrogate the prior deficiencies noted, including specifically a lack of evidence of in-service incurrence of each disability and of evidence of current knee disability. Given the “low threshold” standard of Shade, and presuming the credibility of the new evidence, the Board finds that additional evidence received since the final February 2012 denial is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claims for right and left knee disabilities. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the reopened service connection claims for right and left knee disabilities, as well as the higher rating claim for GERD on appeal, prior to appellate consideration, is warranted. With respect to the Veteran’s reopened knee disability claims, he has credibly reported suffering from knee pain during service, and noted his belief that the disabilities were otherwise the result of his 20 years of service as an airplane mechanic, which required him to work on his knees extensively. Additionally, the evidence of record indicates that the Veteran has current right knee degenerative changes, and that he otherwise suffers from left knee pain, which may result in disabling functional impairment. In this regard, in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” This evidence was not addressed in the prior examination report. Thus, given the Veteran’s reports as to the effects of his in-service duties on his knees, and evidence of current knee disability or condition resulting in functional impairment, and the lay assertions as to a nexus between the two, the Board finds that remand of both knee claims is warranted to afford the Veteran a new VA examination to obtain medical information as to the nature and etiology of all current knee conditions. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the Veteran’s higher rating claim for service-connected GERD, the disability was last evaluated during VA-contracted examination in August 2017. During his March 2020 Board hearing, however, the Veteran testified that the disability had worsened since the prior examination. He specifically described symptoms of daily heartburn, and more severe pain going from his chest into his arm, which were not noted during the prior examination. Thus, the Board finds that remand is necessary to afford the Veteran a contemporaneous VA examination to fully assess the severity of his service-connected GERD. Cf. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 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 also undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through July 2019. However, as more recent records may exist, the AOJ should obtain and associate with the claims file all outstanding records of VA evaluation and/or treatment of the Veteran dated since July 2019. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to any service connection or higher rating claim(s) on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide 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 necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (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 prior to adjudicating the service connection and higher rating claims on appeal. Adjudication of the higher rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate The matters are hereby REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since July 2019. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the either service connection or higher rating claim on appeal that is not currently of record, to include any private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide a claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current 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 of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination of his bilateral knees by an appropriate physician. The contents of the entire, electronic claims file, 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 should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should clearly identify all right and left knee disabilities—to include degenerative changes, and any knee condition manifested by pain resulting in functional impairment of earning capacity—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). Then, with respect to each such identified disability/condition, the physician 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 such disability/condition had its onset during service or is otherwise medically related to service—to specifically include his noted incidents of knee pain and knee bruising during service, and his reported history of working on airplanes for 20 years, which required him to frequently be in a kneeling position. In addressing the above, the physician must consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s assertions as to the nature, onset, and continuity of right knee pain symptoms. If lay assertions in any regard are discounted, the physician 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. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA GERD examination by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated examiner, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify and comment on the existence and severity (or frequency, as appropriate) of all symptoms attributable to the Veteran’s service-connected GERD, to include the symptoms described by the Veteran during his March 2020 Board hearing—pyrosis, pain in the chest going down the right side, vomiting, nausea, and reflux. All examination findings/testing results, along with complete, clearly stated rationale for the conclusions reached, must be provided 6. 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). 7. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the remaining claims on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, with respect to the higher ratings claim, consideration of whether staged rating of GERD is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.