Citation Nr: 21010078 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-12 468 DATE: February 24, 2021 ORDER New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for osteochondritis dissecans, left knee, is denied. New and material evidence having not been received, the petition to reopen the claim of entitlement to service connection for osteochondritis dissecans, right knee, is denied. FINDINGS OF FACT 1. In a May 1963 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for osteochondritis dissecans of the bilateral knees; a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Evidence received since the May 1963 decision is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1963 rating decision denying the claims of entitlement to service connection for osteochondritis dissecans of the bilateral knees is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. Evidence received since the May 1963 decision not new and material; accordingly, the claims of service connection for osteochondritis dissecans of the bilateral knees are not reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to March 1963. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). After a February 2019 Board decision, the Veteran appealed this issue to the Court of Appeals for Veterans Claims (Court). In January 2020, the parties agreed to a Joint Motion for Remand (JMR). Subsequently, in June 2020, the Board remanded for additional development in accordance with the JMR, to look for VA records from 1970 to the present. A negative response has been associated with the claims file and the Veteran was notified of VA action(s) taken in an October 2020 letter. As such, the requested development has been fully completed. The Board now finds substantial compliance with its prior remand instructions and will proceed to adjudicate these matters.   New and Material Evidence 1. Whether new and material evidence has been received to reopen a claim of service connection for osteochondritis dissecans, left knee. 2. Whether new and material evidence has been received to reopen a claim of service connection for osteochondritis dissecans, right knee. The Veteran’s representative at the Court of Appeals for Veterans Claim submitted a statement after the January 2020 JMR. This attorney representative essentially contended that the Board failed to provide reasons or bases as to why the Board in 2019 characterized these matters as new and material evidence from a prior final denial. It basically stated that the Veteran’s current claim was for service connection for osteoarthritis, not to reopen a previously denied claim of service connection for osteochondritis dissecans of the knees. The Court representative in essence argued that the Board should have construed the claim more broadly than an application to reopen the previously denied claim because the application form generally identified disabilities of both knees caused by marching/lifting. See 1/23/2020 Third Party Correspondence. In a December 2020 decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that the proper inquiry for VA in reviewing a pro se claimant’s (to include VSO representatives) request to reopen filing is to determine what diagnoses, conditions, or illnesses can reasonably be understood as included in the request. Murphy v. Wilkie, 983 F.3d 1313, 1319 (Fed. Cir. 2020). The Federal Circuit stated that this inquiry may be informed by, but not limited to, looking to what the particular veteran could have reasonably expected to have included in the filing of such request and the evidence of record. The Board will now review relevant pieces of evidence to look to inform what the Veteran could have reasonably expected to have included in the filing of January 2017 request and the evidence of record. In 1963, the Veteran filed a VA application for compensation or pension and listed osteochondritis dissecans involving both knees. The competent evidence in the early 1960s shows that the Veteran had a painful knees with swelling. The May 1963 rating decision denied service connection for this issue and stated that the evidence shows that the Veteran’s knee disabilities pre-existed service with no significant increase in pre-service level of disability demonstrated during or by Veteran’s short period of service. The Veteran failed to file a timely notice of disagreement, and no new and material evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. §7105(c) (2012); see 38 C.F.R. §3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim). In December 1966, the Veteran filed for “knee injury – 1962 (both).” VA responded with a letter advising the Veteran of the May 1963 denial and that since he did not appeal it the claim remained in disallowed status. It indicated that the Veteran may reopen by submitting new and material evidence, preferably medical, tending to establish that his injury – both knees, was incurred in or aggravated by his service. Subsequently, in January 2009, the Veteran appointed The American Legion as his representative and submitted a signed statement that he was applying for service connection for a right and left knee injury caused and aggravated in service. In April 2009, VA sent the Veteran a letter indicating that a February 2009 letter asked the Veteran to submit evidence in support of the January 2009 claim; however, because VA did not receive the requested evidence, the claim was denied. The April 2009 letter informed the Veteran that if the evidence was received by February 19, 2010, VA can continue processing the claim, but if it was received after this date, it would be considered a new claim. A December 2016 statement from the Veteran describes what happened during his service, to include indicating that he was initially scheduled for surgery in service, but instead was sent to a medical evaluation board, and ultimately discharged from service. In a January 2017 VA application form, the Veteran listed “both knees.” 1/27/2017 VA 21-526EZ. The April 2017 rating decision currently on appeal denied reopening as it found no new and material evidence had been submitted. A May 2017 statement from his representative stated that it included new and material evidence and acknowledges that there was a pre-existing problem. On a May 2018 VA Form 9, the Veteran stated that osteochondritis dissecans does cause cracks in the cartilage and bones and that when he fell in the shower in service a bone fragment broke off and lodged in his knee area. The Veteran also discussed the medical discharge board and some statements from a doctor made at that time. Going back to Murphy, as indicated above, the Federal Circuit stated that the proper inquiry for the VA in reviewing a pro se claimant's request to reopen filing is to determine what diagnoses, conditions, or illnesses can reasonably be understood as included in the request, and that this inquiry is to be informed by, but not limited to, looking to what the particular veteran could have reasonably expected to have included in the filing of such a request and the evidence of record. Here, the January 2017 application is broad as it lists “both knees.” The 2017 application cannot be looked at, however, in a vacuum. The Federal Circuit instructed to look at the Veteran’s reasonable expectations and the evidence of record. When looked at in context, the 2017 application is similar and consistent with the Veteran’s prior applications. In his 1963 application, the Veteran listed “osteochondritis dissecans involving both knees” and the December 1966 application form was for “knee injury” both. Finally, the January 2009 petition to reopen where the Veteran stated he was applying for service connection for right and left knee injury caused and aggravated in service. VA responded to the 1966 application and requested that he submit new and material evidence and in 2009, VA requested that the Veteran submit evidence in support. VA responses in 1966 and 2009 help illuminate what the Veteran could have reasonable expected to be included in the 2017 application. Additionally, regarding the evidence developed in processing the 2017 claim, the medical evidence shows a current diagnosis of osteoarthritis. For example, an August 2016 history and physical notes pain and swelling of the knees. The Veteran’s past medical history included both osteoarthritis and, as a teenager, osteochondritis dissecans. In May 2017, the Veteran’s representative indicated that new and material evidence would be presented to show a pre-existing problem was aggravated during or as a result of service, and the Veteran’s 2018 Form 9 included discussion of osteochondritis dissecans and the comments of a doctor at the in-service medical board proceeding. These tend to show that he was of the mindset of reopening that prior, final 1963 denial and not seeking service connection for a disability with a distinct factual basis. Although the Veteran’s Court representative in January 2020 has essentially argued that because osteoarthritis is a different diagnosis than osteochondritis dessicans, the record is void of any competent evidence demonstrating that the two diagnoses are in fact distinct. As the evidence tends to show that the Veteran was applying for the same benefit and had the same reported symptoms, the Board finds that Boggs v. Peake does not apply, and that the Veteran’s most recent claim is most appropriately viewed as an application to reopen a previously denied claim. The Court, in Clemons, stated that "the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits." 23 Vet. App. 1, 8 (2009). In light of the foregoing, VA's only duty is to consider whether the claimant has presented new and material evidence as contemplated by 38 U.S.C. § 5108. After reviewing the record, the Board finds that new and material evidence has not been received for the claims of service connection for osteochondritis dissecans of the bilateral knees, and as such the claims are not reopened. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).   For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran’s claims of service connection for osteochondritis dissecans of the bilateral knees was originally denied by a May 1963 rating decision based on findings per a Physical Evaluation Board Proceedings dated in February 1963 that the disabilities existed prior to service (EPTS) and there was no significant increase in the disabilities shown during his short period of service. The Veteran failed to file a timely notice of disagreement, and no new and material evidence was received within the appeal period after the decision. As such, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (finding that VA must determine whether evidence received during the appeal period after a decision contains new and material evidence per section 3.156(b) and failure to readjudicate the appeal after receipt of such evidence renders the decision non-final). The Veteran subsequently filed claims in December 1966 and January 2009. He was informed in a December 1966 letter about the information he needed to reopen the claim. He did not submit any additional evidence at that time. He was also informed in a February 2009 letter about the need for additional evidence. He did not submit additional evidence and was informed in April 2009 that his claim was again denied. A February 2019 Board decision found that new and material evidence has not been received to reopen the claim for osteochondritis dissecans of the bilateral knees. Specifically, evidentiary submissions received since the May 1963 rating decision are cumulative and redundant and do not relate to an unestablished fact necessary to reopen the claim. 02/22/2019, BVA Decision. The 1963 rating decision found that the evidence showed the Veteran’s bilateral knee disorder pre-existed service with no significant increase in the pre-service level of disability demonstrated during or by his short period of service. At the time of denial in May 1963, the evidence included service treatment records, an April 1963 VA application for disability compensation, and private medical records. These records included a September 1962 report of medical history noting a trick or locked knee. An October 1962 x-ray report noted symptoms that may represent early osteochondritis dissecans. 01/18/2017, STR – Medical, pages 19 & 21. The Veteran’s knee became swollen before basic training and again after having been placed in traction for weeks. A Medical Evaluation Board was convened in February 1963 and he was diagnosed with osteochondritis dissecans of the bilateral knees. During the proceedings, the Veteran testified that he injured the bilateral knees when his left knee locked and he fell in the shower. The February 1963 Physical Evaluation Board concluded that the Veteran’s osteochondritis dissecans of the bilateral knees existed prior to service and there was no significant increase in the disabilities shown during service. He was recommended for separation from service. See 01/18/2017, STR – Medical. The treatment records also confirmed his diagnosis of osteochondritis dissecans and showed that he had left knee surgery in May 1963 and that he would likely have right knee surgery in the near future. See 05/07/1963, Medical Treatment Record – Government Facility; see also 05/10/1963, Rating Decision (reflecting that the RO considered the aforementioned evidence and service records). The Veteran appealed the February 2019 Board decision to the Court. In January 2020, the Court issued an order granting a Joint Motion for Remand (JMR) and vacated the February 2019 Board decision. The parties agreed that the Board erred when it failed to request VA medical records. Specifically, in an application for compensation in January 2017 and VA Form 21-4142a in April 2017, the Veteran asked the VA to obtain treatment records from Montrose, New York, VA Medical Center (VAMC) from “early 1970’s to ongoing.” The claims file does not show that the VA attempted to obtain the records and there are no records from Montrose VAMC. 01/24/2020, CAVC Decision. In light of the JMR, a June 2020 Board decision remanded the claim and directed the AOJ to obtain the Veteran’s VA treatment records from Montrose, New York, for the period from 1970, or when the Veteran began treatment, to the Present. 06/29/2020, BVA Decision. In July 2020, the AOJ made attempts to obtain the records from the VA Medical Center in Montrose, New York, and received a response stating that there were no records whatsoever for the Veteran, to include admissions on file, records on shelf, and progress notes. 07/16/2020, Medical Treatment Record – Government Facility; 09/09/2020, Deferred Rating. In September 2020, the AOJ requested that the Veteran provide any records from the aforementioned VA medical facility. 09/17/2020, Subsequent Development Letter. And, in October 2020, the AOJ provided the Veteran with a summary of its efforts to obtain the treatment records. 10/16/2020, Correspondence. The record is devoid of any indication that the Veteran responded to the requests from the AOJ to provide any records in his possession. Since the last final decision, no new and material evidence pertaining to osteochondritis dissecans of the bilateral knees has been received. Following the May 1963 rating decision, current medical treatment records and lay statements have been incorporated into the claims file. However, the recent evidentiary submissions, lay and medical, are duplicative in substance of previously considered evidence and do not cure any prior evidentiary defect. The evidence is cumulative and redundant of information previously of record. The medical records show the existence and treatment of his bilateral knee disabilities, to include for the pain and swelling thereof. The Veteran has also made lay statements regarding his fall in the shower while in service. (Continued on the next page)   The Board finds that the new evidence does not raise a reasonable possibility of substantiating the claim. Although the recent evidentiary submissions are new insofar as they were not previously of record or considered, this evidence is not material since it does not tend to show that the Veteran’s disabilities were incurred or aggravated in service. Accordingly, after review of the record, the Board finds that new and material evidence has not been received to reopen the claims of service connection for osteochondritis dissecans of the bilateral knees. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.