Citation Nr: 22012263 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 17-19 133 DATE: March 3, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement of service connection for a left knee disability is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a right foot disability is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a left foot disability is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. FINDINGS OF FACT 1. The evidence received since the August 2009, rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. 2. The evidence received since the August 2009, rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. 3. The evidence received since the August 2009, rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a right foot disability. 4. The evidence received since the August 2009, rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left foot disability. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim for entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim for entitlement to service connection for a left knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received to reopen a claim for entitlement to service connection for a right foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence has been received to reopen a claim for entitlement to service connection for a left foot disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to December 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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 be neither cumulative nor 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(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a right knee disability 2. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a left knee disability 3. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a right foot disability 4. Whether new and material evidence has been submitted to reopen a previously denied claim for service connection for a left foot disability An August 2009 rating decision denied service connection for degenerative arthritis of the right and left knees and right and left foot pain. The AOJ noted that there were no injury, findings, treatment, or diagnosis referable to any knee or foot disabilities during service. The Veteran submitted a notice of disagreement in November and December 2009 and a statement of the case was issued in October 2011. The Veteran did not timely perfect an appeal and the August 2009 rating decision became final. 38 C.F.R. § 20.302. Evidence received since the August 2009 rating decision includes a November 2011 statement from the Veteran in which the Veteran stated that he was often treated by basketball team doctors and trainers for in-service sports-related complaints and injuries and that this was why reports of his foot and knee injuries were not in the service medical records. The Board finds that the November 2011 statement is new and material. The evidence is new as it was not previously considered at the time of the August 2009 decision. The evidence is material as it relates to the previously unestablished in-service incurrence element and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The credibility of the newly submitted evidence is presumed in determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). As new and material evidence has been received, the claims for service connection for bilateral foot and knee disabilities are reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claims, that does not make it sufficient to allow the grant of the benefits sought, and the newly reopened claims are being remanded for further development. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. 2. Entitlement to service connection for a left knee disability is remanded. The Veteran asserts that a bilateral knee disability is the result of service. Specifically, the Veteran asserts that he had several knee injuries as a result of playing basketball while in service. A March 1970 medical record shows that the Veteran complained of sore knees. In November 2011, the Veteran stated that he played basketball while in service and sustained several knee injuries during service. The Veteran stated that the injuries were often treated by basketball team doctors and trainers, and may not have been recorded in the service medical records. During the September 2021 Board hearing, the Veteran stated that after separation from service, he was treated for bilateral knee problems. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006). The Board finds that while the above-stated evidence may not be competent to be dispositive of the claims, it sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination. Therefore, remand for a VA examination is necessary which adequately addresses the relationship, if any, between any knee disability, and service. During the September 2021 Board hearing, the Veteran testified that following separation from service, he was treated for knee complaints at Malcom Randall VA Medical Center (VAMC) in Gainesville, Florida. The Board notes that the claims file only contains VA medical records beginning in September 2002. VA's duty to assist includes the duty to obtain VA medical records, regardless of the relevancy of those records. Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). On remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain VA medical records beginning in December 1970, to include from the VA Medical Center in Gainesville, Florida. The Veteran also testified at the Board hearing that he was unable to obtain relevant medical records from Alachua General Hospital because the hospital had closed. A cursory internet search shows that the hospital was sold to Shands Healthcare Inc. in 1996 and the hospital closed in 2009. However, some of the Alachua General Hospital medical records may still be available at the University of Florida Health Shands Hospital. On remand, the AOJ should attempt to obtain private medical records. A June 1988 medical record shows that the Veteran injured the left knee while working and was referred to a surgeon by his doctor M.T. The Veteran was given a permanent impairment rating in November 1989. A July 2000 medical report shows that the Veteran's attorney "had questions about the cost of a total knee replacement" and the attorney was provided with a copy of the July 2000 medical report. The Board finds that the record suggests a possible workers' compensation claim. However, there are no workers' compensation records in the claims file. On remand, the AOJ should obtain any outstanding workers' compensation claim records. The Veteran has stated and testified that he submitted several photographs of him in knee braces during and immediately following service. All of the photographs have not been associated with the claims file. On remand, the Veteran should be given an opportunity to re-submit the photographs from service and immediately following service. 3. Entitlement to service connection for a right foot disability is remanded. 4. Entitlement to service connection for a left foot disability is remanded. The Veteran asserts that a bilateral foot disability is the result of service. Specifically, the Veteran asserts that he had several foot injuries as a result of playing basketball while in service. An August 1970 medical record shows that the Veteran complained of sore and tender feet. In November 2011, the Veteran stated that he played basketball while in service and sustained several foot injuries in service. The Veteran stated that his injuries were often treated by basketball team doctors and trainers and may not have been recorded in service medical records. The Board finds that while the above-stated evidence may not be competent to be dispositive of the claims, it sufficient to overcome the low threshold necessary to trigger VA's duty to provide an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, remand is necessary for a VA examination which adequately addresses any relationship between any current bilateral foot disability and service. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain and associate with the claims file: (a.) Relevant VA medical records. Specifically, obtain all records from the Malcom Randall VA Medical Center in Gainesville, Florida, from 1970 and prior to 2002. All reasonable attempts to obtain records should be made and documented in the claims file, and the VA facility must provide a negative response if records are not available. (b.) Relevant medical records for each private healthcare provider who has treated the Veteran for any knee or foot disability. The request must include all relevant records from the former Alachua General Hospital made to University of Florida Health Shands Hospital; and relevant records from Dr. M.T. All attempts to obtain records should be documented in the claims folder. (c.) A copy of any determination from the State of Florida or any workers' compensation agency associated with a claim for workers' compensation for any knee injury and all documents and medical records associated with the determination. All attempts to obtain records should be documented in the claims folder. 2. Then, after the above development is completed or it is confirmed that requested records do not exist, schedule the Veteran for a VA examination to determine the nature and etiology of any right and left knee disability. The examiner must review the claims file, and a complete history should be elicited from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. A complete rationale should be stated for all opinions and conclusions. The examiner should identify any pertinent pathology found and should diagnose any disability of the knees. As to any knee disability identified on examination, the VA examiner should: (a.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right or left knee disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should specifically consider and discuss: (1) the lay reports and testimony of knee injuries and knee braces during and after separation from service; (2) knee complaints noted during service; (3) any significance of a May 2003 report of a lower left leg bullet wound from 1972, and (4) a 1988 work-related left knee injury. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right left knee arthritis manifested within one year of separation from service. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right or left knee disability is due to or the result of the service-connected disabilities. (d.) Opine whether it is at least as likely as not (50 percent probability or greater) that any knee disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any right and left foot disability. The examiner must review the claims file, and a complete history should be elicited from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. A complete rationale should be stated for all opinions and conclusions. The examiner should identify any pertinent pathology found and should diagnose any disability of the feet. As to any foot disability identified on examination, the VA examiner should: (a.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right or left foot disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner should consider the Veteran's lay reports of symptoms during and since service, and complaints of sore and tender feet during service. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right or left foot arthritis manifested within one year of separation from service. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right or left foot disability is due to or the result of the service-connected disabilities. (d.) Opine whether it is at least as likely as not (50 percent probability or greater) that any right or left foot disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.