Citation Nr: 21067291 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-30 330 DATE: November 3, 2021 ORDER The petition to reopen the Veteran's claim for service connection for an injury to the back of the head is granted. The petition to reopen the Veteran's claim for service connection for a left knee injury is granted. The petition to reopen the Veteran's claim for service connection for a right knee injury is granted. The petition to reopen the Veteran's claim for service connection for a low back injury is granted. REMANDED Entitlement to service connection for an injury to the back of the head is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDINGS OF FACT 1. A November 8, 2001 rating decision denied entitlement to service connection for a lower back injury, left knee injury, right knee injury and a back of the head injury. 2. Petitions to reopen these claims for service connection for a left knee injury, a right knee injury and a back of the head injury were denied in a July 2006 rating decision and in a July 2007 rating decision. 3. Additional evidence received after the respective November 8, 2001 and July 30, 2007 rating decisions is not cumulative or redundant of the evidence of record at the time of those decisions, and relates to unestablished facts necessary to substantiate the claims for service connection on appeal. CONCLUSIONS OF LAW 1. The July 30, 2007 rating decision is final as to entitlements to service connection for a right knee injury, left knee injury and for residuals of an injury to the back of the head. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the July 30, 2007 rating decision; thus, the claim for service connection for residuals of an injury to the back of the head is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. New and material evidence has been received since the July 30, 2007 rating decision; thus, the claim for service connection for a left knee injury is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 4. New and material evidence has been received since the July 30, 2007 rating decision; thus, the claim for service connection for a right knee injury is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 5. The November 8, 2001 rating decision is final as to entitlement to service connection for a lower back injury 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 6. New and material evidence has been received since the November 8, 2001 rating decision; thus, the claim for service connection for a lower back injury is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1972 to December 1972, and then again from May 1973 to November 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims were previously before the Board on September 3, 2019, but they were remanded because evidence was associated with the claims file after the then-most recent Supplemental Statement of the Case (SSOC) that was issued on August 18, 2016, and there was no waiver of consideration of the evidence by the Agency of Original Jurisdiction (AOJ) in the first instance on file. See 38 C.F.R. §§ 19.37, 20.1304. As a result, the claims were remanded, and the Veteran was then issued a subsequent SSOC on June 30, 2020. The Board accordingly reasserts jurisdiction. The Board notes that in the VA Form 9 as received on August 7, 2014, the Veteran requested a hearing at a local VA office. A hearing was duly scheduled for November 2017. The Veteran failed to attend his requested Board hearing and to date has not provided good cause as to why he did not appear or request that the hearing be rescheduled. The hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d); see also Report of Contact (Oct. 11, 2019) (confirming that a rescheduled hearing was in error and that the hearing is withdrawn). The Board also notes that a letter from VA, dated April 25, 2019, was sent to the Veteran and his Veterans Service Organization (VSO) representative that acknowledged the representative's August 2017 request to withdraw as the Veteran's representative. However, the letter noted the withdrawal request as inadequate and indicated that the representative had 30 days from the date of the letter to submit an appropriate motion for withdrawal with the Board, to include a copy to the Veteran. As a motion for withdrawal of representation has not been submitted and it has been over 30 days from the date of the VA letter, the VSO remains the Veteran's representative. New and Material Evidence As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or redundant of the evidence of record at the time of the last prior 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines 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. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. 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). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran initially filed claims for service connection for a right and left knee injury, a lower back injury and a back of the head injury in May 2001. A November 2001 rating decision denied the claims for service connection as the evidence failed to show that a left knee injury disability for which compensation may be established and there was insufficient objective medical evidence to suggest that a chronic disabling right knee condition, lower back condition or a back of the head injury began in or was caused or aggravated by service. Evidence considered in the November 2001 rating decision included the Veteran's service treatment records. The rating decision noted that the November 1974 separation examination had found crepitus of the knee but provided no diagnosis related to either knee and no evidence of a back injury or a head injury. In November 2001, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until March 2006, when VA received a petition to reopen his claim for entitlement to service connection for a left knee injury, a right knee injury and a back of the head injury. Therefore, the November 2001 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claims for service connection was received prior to the expiration of the appeal period stemming from November 2001 rating decision. See also Long v. Wilkie, 33 Vet. App. 167 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). The Veteran sought to reopen his claims of entitlement to service connection for a left knee injury, a right knee injury and a back of the head injury in March 2006. A July 2006 rating decision found that new and material evidence had not been received and the petitions to reopen were denied. Evidence considered in this July 2006 rating decision includes service treatment records, VA treatment records dated through February 2006 and a June 2006 private treatment summary. In July 2006, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until April 2007, when VA received a petition to reopen his claims for entitlement to service connection for a left knee injury, a right knee injury and a back of the head injury. Therefore, the July 2006 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from July 2006 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. The Veteran sought to reopen his claims of entitlement to service connection for a left knee injury, a right knee injury and a back of the head injury in April 2007. A July 2007 rating decision found that found that new and material evidence had not been received and the petitions to reopen were denied. Evidence considered in the July 2007 rating decision includes service medical records, VA treatment records dated through November 2006 and private treatment records. In July 2007, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until October 2010, when VA received a petition to reopen his claims for entitlement to service connection for a bilateral knee condition, a lower back condition and a head injury. Therefore, the July 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claims which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from July 2007 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. The Board also notes that additional service personnel records were added to the claims file after the issuance of the initial November 2001, July 2006 and July 2007 rating decisions. At any time after VA issues a decision on a claim, if 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, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the additional service personnel records that had been added to the record since the November 2001, July 2006 and July 2007 rating decisions are not relevant as they do not relate to a claimed in-service event, injury or disease. As such, 38 C.F.R. § 3.156(c) is inapplicable in the instant case and the November 2001, July 2006 and July 2007 rating decisions need not be reconsidered. Evidence received since the July 2007 rating decision includes VA treatment records, multiple VA examinations reports and lay statements. The Veteran states that he suffered a football injury during a period of active duty service, but only in the VA Form 9 see VA Form 9 (rec'd Aug. 7, 2014) did he attribute this injury to the football game for the first time. The Board accordingly determines that this lay statement as to the etiology of the head injury is new and material, because it is not redundant of evidence already of record in July 2007 and it relates to unestablished facts of whether the Veteran's injury to the back of the head may be related to service. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for the claimed injury to the back of the head is reopened. With regards to the claimed right and left knee injuries, a June 2016 VA examination report indicated that the clinical records were significant for a diagnosis of right and left knee osteoarthritis status-post total knee arthroplasty. The Board accordingly determines that this examination report is new and material, because it is not redundant of evidence already of record in July 2007 and it relates to unestablished facts of knee injury disability for which compensation may be established and a relationship between a right knee disability and service. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for a left and right knee injury is reopened. With regards to the claimed lower back injury, a June 2016 VA examination report indicated that the clinical records were significant for a diagnosis of lumbosacral spine X-ray dated in August 2001 with an impression of L4-L5 and L5-S1 interspace narrowing with mild degenerative changes. An etiology opinion was also provided. The Board accordingly determines that this examination report as to the etiology of the claimed low back injury is new and material, because it is not redundant of evidence already of record in July 2007 and it relates to unestablished facts of low back injury for which compensation may be established and a relationship between a right knee disability and service. See 38 C.F.R. § 3.156(a). As such, the issue of entitlement to service connection for the lower back injury is reopened. REASONS FOR REMAND A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. 1. Entitlement to service connection for a head injury is remanded. The Board notes the Veteran's allegation that his injury to the back of his head is from a football accident during a period of active duty service. It is relatively uncontroverted that the Veteran suffered at least one football injury. See STR (Oct. 6, 1972; Aug. 30, 1974) (rec'd Nov. 6, 2001). Alternatively, the service treatment records confirm tenderness of the neck dated August 23, 1974. See id. Meanwhile, there is no VA examination of record that addresses the diagnosis and etiology of it. For this reason, even though the Board is unable to grant to claims at this time, the Board concludes that the Veteran is entitled to a VA examination to ascertain same, and to fairly and adequately adjudicate the claim for entitlement to service connection for an injury to the back of the head. See McLendon, supra. 2. Entitlement to service connection for a left knee disorder is remanded. 3. Entitlement to service connection for a right knee disorder is remanded. 4. Entitlement to service connection for a lumbar spine disorder is remanded. The Veteran was most recently afforded etiological opinions to the bilateral knee and lumbar spine disorders on June 21, 2016. See VA Exam ( June 21, 2016 ). To the extent that this VA examiner appears to have relied on an absence of medical evidence "until decades after military service," medical opinions that rely solely on absence of evidence from the record are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007). Furthermore, the June 2016 VA examiner's opinion is also not fully supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weight against contrary opinion"). The June 2016 opinion is only a conclusory opinion with no supporting rationale; therefore, its probative weight and inherent value is diminished. On remand, an etiology opinion should be obtained. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include any VA treatment records, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford them an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate examiner to confirm specific diagnoses and to determine the etiology of the Veteran's claimed head injury, lumbar spine disorder, and bilateral knee disorders. A complete copy of the claims file, to include this remand, the Veteran's complete service treatment records, and the Veteran's complete medical treatment records, must be made available to the examiner. The need for a physical examination is left to the discretion of the examiner. For each of the above diagnosed disorders, the examiner is asked to respond to the following questions: (A) For any diagnosed head injury, is it at least as likely as not (50 percent or greater probability) that each of the Veteran's current disorder(s) had onset in service, or is otherwise related to his active duty service? The examiner should discuss the significance, if any, of the August 1974 complaints of neck pain. (B) For any diagnosed bilateral knee disorder, is it at least as likely as not (50 percent or greater probability) that each of the Veteran's current disorder(s) had onset in service, or is otherwise related to his active duty service? The examiner should discuss the significance, if any, of the October 1972 complaints of left knee due to playing football and the September 1974 service discharge examination notation of crepitus. (C) For any diagnosed lumbar spine disorder, is it at least as likely as not (50 percent or greater probability) that each of the Veteran's current disorder(s) had onset in service, or is otherwise related to his active duty service? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.