Citation Nr: 18132381
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-01 104
DATE:	September 6, 2018
ORDER
The petition to reopen a previously denied claim for entitlement to service connection for a right knee strain, is denied.
The petition to reopen a previously denied claim for entitlement to service connection for a left knee strain, is denied.
The petition to reopen a previously denied claim for entitlement to service connection for a back disability, claimed as lumbar strain, is granted.
REMANDED
Entitlement to service connection for a back disability, claimed as a lumbar strain, is remanded.
FINDINGS OF FACT
1. In an April 2004 rating decision, the RO denied the Veteran’s claims for entitlement to service connection for a right and left knee strain and lumbar strain finding no evidence of a current disability.  The Veteran did not appeal. 
2. Evidence received since the prior final denial of service connection for a right and left knee strain does not relate to an unestablished fact needed to substantiate, nor raise a reasonable possibility of substantiating the claims.
3. The evidence received since the April 2004 rating decision was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is neither cumulative or redundant of the evidence of records at the time of the last prior final denial and raises a reasonable possibility of substantiating the claim of service connection for a lumbar strain.
CONCLUSIONS OF LAW
1. The April 2004 rating decision is final. 38 U.S.C. 7104; 38 C.F.R. § 20.110.
2. New and material evidence has not been received to reopen the claims of entitlement to service connection for a right and left knee strain.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.
3. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar strain 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 April 1983 to December 2003. 
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 
Application to Reopen Based on New and Material Evidence
The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection for a lumbar strain disability but finds that the Veteran has not submitted new and material evidence to warrant reopening his previously denied claims for service connection for a right and left knee strain.
 New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Additionally, 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low evidentiary threshold has been met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim, were the claim to be reopened. Shade, 24 Vet. App. at 118.
Since the previous denial, the Veteran submitted a claim to reopen his previously denied claims. He submitted post-treatment records indicating that he was being treated for a back disability.  VA treatment records also noted that the Veteran was receiving physical therapy for lower back pain through the Department of Defense.  As the evidence regarding treatment of a back disability was not previously submitted to agency decisionmakers, it must be considered new evidence. The Board further finds that the evidence is not only new, but also material. It raises a reasonable possibility of substantiating the claim when considered with the old evidence. See Shade.  In that regard, the previous denial indicated that the Veteran did not have a current back disability but now there is evidence that the Veteran has been treated for a current back disability.  
On the other hand, the Veteran has not submitted any new and material evidence regarding his right and left knee claims.  Indeed, the Veteran has not submitted any evidence regarding his knee claims.  He merely requested that the claims be reopened.  The Board notes that the RO had previously obtained a VA examination regarding the Veteran’s knee claims in 2004 that then found no current disability.  However, until a claim is reopened, VA does not have a duty to provide another medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159 (c)(1).  
It is noted that service treatment records were associated with the Veteran’s electronic claims folder in January 2014. As these are duplicate copies of service treatment records which were already of record, 38 C.F.R. § 3.156 (c) is not applicable to his claim.
In sum, the evidence received since the April 2004 rating decision does not offer any new, probative information pertaining to the Veteran’s right and left knee strain claims, namely competent evidence of current knee disabilities. Accordingly, the Board concludes that new and material evidence has not been presented regarding those issues, and the defects that existed at the time of the April 2004 rating decision have not been cured. Therefore, those claims may not be reopened.
However, the Board has found that the Veteran has submitted new and material evidence to reopen his previously denied claim for a lumbar strain disability and therefore that claim is reopened. 
REASONS FOR REMAND
Entitlement to service connection for a back disability, claimed as a lumbar strain is remanded.
January 2014 VA treatment records indicate that the Veteran had been receiving physical therapy for his back disability through the Department of Defense.  The Veteran submitted a treatment record, dated May 4, 2014, which indicates that he received treatment for his back at the BMC MCAS Miramar facility with Dr. Kelley.  There are no further records.  As there is evidence of missing relevant private treatment records, they should be obtained on remand. Specifically, the Veteran should be requested to complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, for the release of the private records.
Finally, there is evidence that the Veteran may occasionally seek treatment at a VA facility. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).
The matter is REMANDED for the following action:
1. Obtain up to date VA treatment records.  
2. Contact the Veteran and request that he provide or authorize the release of records from BMC MCAS Miramar and/or Dr. T. Kelley and any other private facility where the Veteran has been assessed or treated for his back disability. See May 2014 health record. 
If, after making reasonable efforts to obtain private records the Agency of Original Jurisdiction (AOJ) is unable to secure same, the AOJ must notify the Veteran and (a) identify the specific records the AOJ is unable to obtain; (b) briefly explain the efforts that the AOJ made to obtain those records; (c) describe any further action to be taken by the AOJ with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond.
3. Thereafter, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the nature and etiology of the Veteran's back disability. The electronic claims file must be reviewed by the examiner, and a note that it was reviewed should be included in the report. 
After reviewing the claims file and examining the Veteran, the examiner should address each the following:
 i. Clarify the Veteran's back disability(ies), to include lumbar strain.
ii. For each back disability identified, is it at least as likely as not (a fifty percent probability or greater) that the Veteran's back disability is related to his active duty service?
If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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. 
(Continued on the next page)
 
4. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order.
 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	L. Baskerville, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

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