Citation Nr: 21012775 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-01 815 DATE: March 5, 2021 ORDER The application to reopen the claim for service connection for a cervical spine disability is granted. The application to reopen the claim for service connection for a right knee disability is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a bilateral shoulder disability, including bilateral degenerative joint disease and bilateral cervical radiculopathy is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. A temporary 100 percent evaluation due to convalescence for a service-connected disability as a result of lumbar spine surgery is remanded. FINDINGS OF FACT 1. The Veteran’s claim for a right knee disability was filed initially in March 1979 and denied in May 1979; however, the Veteran submitted new and material evidence within one year of the decision, which was not reviewed in a subsequent denial of reopening. 2. The Veteran’s March 1979 claim is still pending. 3. The Veteran’s claim for a cervical spine disability was denied initially in September 2009, the Veteran did not disagree with the decision, and new and material evidence was not received physically or constructively within one year. 4. Evidence pertaining to the Veteran’s claim for entitlement to service connection for cervical spine disability since the last final rating decision of September 2009 was not previously submitted, relates to unestablished facts necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The evidence received since the May 1979 rating decision denying service connection for right knee disability is new and material, and the claim for service connection for a right knee disability is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. The evidence received since the last final September 2009 rating decision denying service connection for cervical disability is new and material, and the claim for service connection for a cervical spine disability is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to February 1975 in the Air Force and in the Army Reserve thereafter. The Veteran died in August 2020. The appellant is the Veteran’s surviving spouse and has been substituted as the claimant in this appeal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of January 2013 and November 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in July 2020. New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c). A claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. 1. The application to reopen the claim for service connection for a right knee disability is granted. In the January 2013 rating decision on appeal, the RO denied reopening a claim for service connection for a right knee disability, noting a prior denial of this issue from a May 11, 1979 rating decision. The Veteran did not appeal the May 1979 decision within one year of its issuance, but the RO received medical evidence following the issuance of the May 11, 1979 rating decision on May 21, 1979. This evidence shows the Veteran was diagnosed with chondromalacia and recurrent subluxation in September 1978. See September 1978 Medical Record. The RO denied service connection for a right knee disability and found that pre-existing right knee disability was not aggravated by service, in part, based on service records showing normal imaging for the right knee and no abnormality diagnosed on physical examination. The Board concludes this evidence triggered the need to review the claim for new and material evidence. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); 38 C.F.R. § 3.156(b). The RO did not address whether the medical evidence constituted new and material evidence relating to the prior claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-1368 (Fed. Cir. 2011); 38 C.F.R. § 3.156(b). As the RO did not engage in the necessary analysis, the May 1979 rating decision did not become final. Id. Nonetheless, the Board must determine whether the evidence is new and material. Here, the Board finds the RO made a determination that the Veteran did not have a current knee disability as shown by service records, no examination was conducted. Therefore, the medical records submitted on May 21, 1979 addressed a prior unestablished fact necessary to substantiate the claim, current disability. In light of the evidence described above that was associated with the Veteran’s claims file within one year of the May 1979 rating decision, the Board finds that new and material evidence was received pertaining to the decision for the Veteran’s claimed right knee disability and the May 1979 rating decision is not a final decision. Accordingly, the application to reopen the claim for entitlement to service connection for a right knee disability is granted. 1. The application to reopen the claim for service connection for a cervical spine disability is granted. In a September 2009 rating decision, the RO denied service connection for a cervical spine disability. The Veteran was notified of the September 2009 rating decision and his procedural and appellate rights that same month at his address of record. He did not file a notice of disagreement within one year of notice of the September 2009 rating decision. The Board notes that VA records were added to the record following this decision, however, these records are duplicates of the VA examinations that pertain to the Veteran’s cervical spine and other disabilities. See March 2018 VA Medical Records. The Veteran was not service connected for any disability prior to his death and he did not receive treatment for cervical spine disability from VA. Here, the Board finds that there are no VA medical records that VA was in constructive receipt of, including within the year after the September 2009 rating decision. Lang, 971 F.3d at 1348. For these reasons, the September 2009 rating decision denial of service connection for cervical spine disability became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The RO denied the Veteran’s claim for service connection based on a lack of a nexus between his diagnosed cervical spine degenerative disc disease (DDD) and his service. The RO obtained a September 2009 VA examination that found the Veteran’s DDD would have occurred regardless of active duty service based on medical evidence showing genetics were a determining factor in development of arthritis. The Veteran filed a petition to reopen these claims in August 2011. In a January 2013 rating decision, the RO declined to reopen the claim. The RO noted that, while new evidence had been added to the record show degenerative disc disease of the cervical spine, the evidence submitted did not address a prior reason for the denial. Evidence received since the prior final September 2009 rating decision includes a private examination report from Dr. J.D. M.D., providing a supportive nexus opinion linking the Veteran’s cervical spine disability with a motor vehicle accident that occurred in the line of duty. See May 2015 Opinion; see also May 1987 Service Record. The May 2015 private examination and opinion is new to the file and contains a competent opinion that attributes cervical spine disability with in-service injury, addressing the grounds of the prior final denial. This evidence raises a reasonable possibility of substantiating the service connection claim for cervical spine disability. The Board concludes that the criteria for reopening service connection for cervical spine disability are met. 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for a bilateral shoulder disability, including bilateral degenerative joint disease and bilateral cervical radiculopathy is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a lumbar spine disability is remanded. 5. A temporary 100 percent evaluation due to convalescence for a service-connected disability as a result of lumbar spine surgery is remanded. The Veteran testified prior to his death that he received treatment following service for lumbar and cervical spine disabilities, right knee disability, and his claimed bilateral shoulder disability. See July 2020 Hearing Transcript. While the Veteran did not identify all of the providers by full name, he did identify physicians that treated him for his claimed disabilities. In his testimony the Veteran reported receiving treatment from Dr. Samaris in Kentucky, Dr. Perkins in Raleigh, Dr. Berman in Charlotte, Dr. Hughes, Dr. Ellison, Dr. Dickerson, Dr. Kashif, Dr. Capor, Dr. Koosa, Dr. Ravin, and Dr. Tut. Because those private medical records would pertain to his treatment for the claimed disabilities on appeal prior to his death, they would be relevant to the appellant’s claim. Therefore, efforts should be made to have the Veteran’s surviving spouse authorize their release or locate them and submit them to VA. In his July 2020 testimony, the Veteran’s representative identified that the Veteran was in receipt of Social Security Administration (SSA) disability benefits. The Veteran’s representative later provided a Notice of Decision dated August 11, 2005. The medical records on which the decision was based were not submitted. A review of the claims file shows that there has been no attempt to obtain a copy the medical records relied upon by this decision. The Veteran specifically testified that SSA medical records would demonstrate continuing treatment for his claimed disabilities after service. Medical records considered in connection with his claim for SSA disability benefits are constructively of record, may contain relevant information, and must be secured. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009). A remand is required to allow VA to request these records. The matters are REMANDED for the following action: 1. Obtain an authorization for release of the Veteran’s medical records from the appellant for any treatment source for the claimed disabilities listed above. Additionally, notify the appellant that she may obtain and submit any relevant private treatment records in her possession to VA. 2. Obtain the Veteran’s federal records from the Social Security Administration (SSA). Document all requests for information as well as all responses in the claims file. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Trickey 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.