Citation Nr: 18139669
Decision Date: 09/28/18	Archive Date: 09/28/18

DOCKET NO. 15-33 759
DATE:	September 28, 2018
ORDER
The petition to reopen the previously denied claim of service connection for a left knee disorder is granted.
REMANDED
The newly reopened claim of entitlement to service connection for a left knee disorder is remanded.
FINDINGS OF FACT
1. The RO denied entitlement to service connection for a left knee disorder in April 1996.  The Veteran was notified of this decision that same month and did not file a notice of disagreement nor was evidence received which would have allowed the claim to remain open. 
2. Evidence received since the denial of entitlement to service connection for a left knee disorder raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The April 1996 rating determination denying service connection for a left knee disorder became final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.302, 20.1103 (2017).
2. New and material evidence sufficient to reopen the claim of service connection for a left knee disorder has been received.  38 U.S.C.§ 5108, 7105 (West 2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the appellant, had active service from August 1993 to November 1995.  
The Veteran appeared and gave testimony at a Travel Board Hearing before the undersigned Veterans Law at the RO in July 2018.  A transcript of the hearing is of record. 
With regard to the issue of service connection for a left knee disorder, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding any action which may have been rendered by the RO.  See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) [before considering a previously adjudicated claim, the Board must determine that new and material evidence was presented or secured for the claim]; see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) [the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim].  Therefore, the Board has listed the issues as such on the title page of this decision.
At the time of his July 2018 hearing, the Veteran and his representative raised the issue of clear and unmistakable error (CUE) in the April 1996 rating determination that denied service connection for a left knee disorder.  The RO has not adjudicated this claim; therefore, the Board has no jurisdiction over it.  It is hereby REFERRED to the RO for appropriate disposition.  38 C.F.R. § 19.9(b) (2017).  A decision by the Board regarding whether new and material evidence has been submitted to reopen the claim does not preclude the RO from finding CUE in the April 1996 rating determination, (if shown), and granting service connection for a left knee disorder.  
1. Whether new and material evidence has been received to reopen the claim of service connection for a left knee disorder 
Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C § 5108; 38 C.F.R. § 3.156.  "New" evidence means evidence "not previously submitted to agency decisionmakers."  38 C.F.R. § 3.156(a).  "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."  Id.  
The Court has elaborated that material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations.  Kent v. Nicholson, 20 Vet. App. 1 (2006).
In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive.  See Shade v. Shinseki, 24 Vet. App. 110 (2010).  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).
Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim."  Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).  If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final."  King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). 
When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final.  Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims").  In Buie, the Court explained that, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). Id.
In an April 1996 rating determination, the RO noted that service treatment records showed a history of left knee pain not the result of trauma in December 1993.  The RO indicated that there was no subsequent mention of a left knee problem in service treatment records and that no clinical evidence of the left knee disability was found on a Department of Veterans Affairs examination.  
The RO found the claim for service connection for a left knee disability to be not well grounded because there was no medical evidence that a chronic disability now existed.  The RO noted that additional medical evidence to show there were current residuals of the claimed condition was needed.  It indicated that a medical report or treatment record was usually required to show that there was a current disability.  The RO noted that VA could not consider lay statements or medical tests for this purpose, and historical treatment records could be insufficient to show that there was a residual disability.
Evidence available to the RO at the time of the prior denial included the Veteran's service treatment records, the Veteran's statements, and the results of a January 1996 VA examination.  The Veteran was notified of this decision later that month and did not appeal nor was any evidence received within the one-year period following notification of the denial which would have allowed the claim to remain open; thus, the decision became final.  38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.
Evidence added to the record includes VA treatment records, statements and testimony from the Veteran, a letter from the Veteran’s wife, and the results of a July 2013 VA examination with an August 2013 addendum e-mail opinion. 
Treatment records and VA examinations reveal that the Veteran currently has a left knee disorder, to include degenerative joint disease of the left knee.  In addition, the Veteran has raised a new theory of service connection, claiming that his current left knee disorder is caused and/or aggravated by his service-connected right knee disorder.  In support of his claim, the Veteran has submitted a statement from his spouse indicating that ever since she has known the Veteran he has complained about his knees.  She noted that the Veteran limped badly as a result of his right knee and that his left knee now had severe pain and instability.  She stated that both she and the Veteran believed that his left knee pain was due to his right knee, and, if not secondary, it was certainly aggravated by the right knee pain.  
The Veteran testified as to having had left knee pain since service and as to compensating for the right knee with the left knee for numerous years due to the severity of the right knee.  He indicated that he was now receiving injections in the left knee due to the pain.  
The Boards does note that the Veteran was afforded a VA examination in July 2013, at which time he was noted to have been diagnosed with patellofemoral pain syndrome of the left knee, a meniscus tear of the left knee, and osteoarthritis of the left knee.  Following examination, the examiner opined that it was less likely than not that the Veteran’s left knee disorder was incurred in or caused by the claimed inservice injury, event, or illness.  
The examiner noted that military records indicated that the Veteran was evaluated for left knee pain that developed while in Basic Training.  The examiner observed that the Veteran was seen for medical care on at least 4 occasions between August 1993 and December 1993 and that he could find no other treatment records.  He noted that the Veteran stated he had recurrent left knee pain since that time with a significant increase in the pain in about 2010.  The examiner observed that the diagnosis in 1993 was PFPS.  The examiner further noted that a MRI performed May 2006 did not show any significant derangement and that a MRI performed in October 2012 showed a new medial meniscal tear, a new osteochondral defect of the medial tibial plateau, mucinous degeneration of the ACL, and progression of arthritis within the patellofemoral and medial compartments.  The examiner stated that this was evidence of a post-service intervening event.  He indicated that it was his opinion that the Veteran's present left knee condition was not caused by or a result of the left knee condition he had while in service.  He stated that the Veteran’s current painful/limited motion is a result arthritis, degenerative changes and residuals of meniscus surgery.
In an August 2013 e-mail, the July 2013 VA examiner indicated that the Veteran had a long-standing right knee problem (1994) which could result in problems with the opposite knee.  He reported that this usually was represented by osteoarthritis in the opposite knee.  He observed that an X-ray performed of the left knee in March 2006 was interpreted as normal and that an X-ray performed in November 2010 showed minor degenerative joint disease of the left knee.  He also noted that another X-ray performed August 2011 showed minor degenerative joint disease of the left knee.  He stated that in his opinion, minor degenerative changes in the knee would be very likely in someone nearing 40 years of age with the Veteran’s weight problem.  He opined that these minor degenerative changes more likely than not were caused by his obesity.  He noted that obesity was a strong risk factor for osteoarthritis of the knee.  It was his opinion that there was no evidence of the osteoarthritis or other left knee condition being proximately due or permanently aggravated beyond natural progression by his right knee problem.
The Board notes that while these opinions are negative, the examiner did not have the benefit of the Veteran’s testimony or the statements from his wife when rendering his opinions as these were added to the record subsequent to the opinions being rendered, with wife’s statements showing a continuity of symptoms for the left knee problems.  Moreover, post-examination treatment records note a continuation of deterioration of the left knee, to include the Veteran now receiving injections for the left knee.  
As the Veteran has been shown to have current left knee disorders, the absence of such a disorder being the basis for the prior denial, and as the Veteran has raised a new theory of service connection, namely as secondary to his service-connected right knee disorder, with the record now demonstrating a worsening of the left knee condition and statements from the Veteran and his spouse showing a continuity of symptoms since service, the newly received evidence relates to previously unestablished elements of the claim of a current disability and a possible link between the current disability and service, to include by way of a service-connected disability, and provides a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
For these reasons, the Board finds that the evidence received since the April 1996 rating determination is new and material to reopen service connection for a left knee condition.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  The reopened issue will be addressed in the remand section below.
REASONS FOR REMAND
1. Entitlement to Service Connection for a Left Knee Disorder is remanded.
As it relates to the claim of service connection for a left knee disorder, the Board notes that while a July 2013 VA examination report and an August 2013 addendum e-mail provided negative opinions, evidence added to the record subsequent to the opinions, in the form of the Veteran and his spouse’s statements as to continuity of left knee problems since service and the worsening of the left knee symptomatology since the 2013 examination, with the Veteran and his spouse indicating a worsening of the left knee problems as a result of the Veteran favoring his right knee, demonstrate that an additional VA examination, to address the newly added evidence is warranted.  
The matter is REMANDED for the following action:
1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claim.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 
2. Schedule the Veteran for a VA examination to determine the etiology of any current left knee disorder.  The examiner must review the claims file in conjunction with the examination. 
The examiner is to note all current left knee disorders.  The examiner is requested to offer the following opinions:
Is it as likely as not (50 percent probability or greater) that any current left knee disorder is etiologically related to the Veteran's period of service? 
If not, is it as likely as not (50 percent probability or greater) that any current left knee disorder is caused by the service-connected right knee disorder?
If not, is it at least as likely as not (50 percent probability or greater) that any current left knee disorder is aggravated by the service-connected right knee disorder?  If aggravation is found, to the extent that it is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation.
When rendering the above opinions, the examiner must address the Veteran and his spouse’s reports of continuous symptoms since service. 
Complete detailed rationale is requested for each rendered opinion.

 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	T.S. Kelly, Counsel 

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