Citation Nr: 1805571 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-25 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for a left knee disorder. REPRESENTATION Veteran represented by: Douglas Brooks WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from July 27, 1973 to December 5, 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in April 2017. The issue of entitlement to service connection for a left knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT New and material evidence has been received since the April 1979 final rating decision that denied service connection for a left knee disorder. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for a left knee disorder is reopened. 38 U.S.C §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The RO denied the Veteran's initial claim for entitlement to service connection for a left knee injury in an April 1979 rating decision. It was noted that service treatment records reflected that the Veteran's entrance exam was negative for any knee disorders, but that he was seen for knee problems in November 1973. He was diagnosed with osteochondritis dissecans, a condition considered to have existed prior to service. In its rating decision, the RO indicated that the Veteran underwent Medical Board proceedings in late 1973, when it was determined that there was no evidence that the Veteran's pre-service left knee condition was aggravated during his short period of active duty of four months and nine days. Relying on the findings of the Medical Board, the RO found that there was no evidence showing that the Veteran's pre-service left knee condition was aggravated to any appreciable degree during his short period of active duty. As such, the RO denied the Veteran's claim. The Veteran did not file a timely notice of disagreement with this rating decision, and no new and material evidence was added to the record within the relevant appeals period. As such, the April 1979 rating decision became final. 38 C.F.R. § 3.156. Since April 1979, pertinent evidence has been added to the claims file, as follows. VA medical records show that the Veteran was diagnosed with degenerative arthritis of his left knee, and has undergone a total knee replacement of his left knee in March 2013. See February 2013 and April 2014 VA medical records. In addition, at his hearing, the Veteran reported that he has experienced left knee pain since service. See Hearing Transcript, pg. 6. The Board finds that this new evidence is also material to the Veteran's claim, as it provides evidence that could potentially substantiate the Veteran's claim for entitlement to service connection for a left knee disability. This evidence is consistent with the criteria of 38 C.F.R. § 3.159(c)(4)(iii), and McLendon, 20 Vet. App. 79, for determining whether a VA examination is necessary. See Shade, 24 Vet. App. 110. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for a left knee disorder. Hence, the appeal to this extent is allowed. ORDER New and material evidence with respect to the claim of service connection for a left knee disorder has been received; the claim is reopened, and to this limited extent, the appeal of the issue is granted REMAND The Veteran's left knee disability was initially denied because the RO relied upon an in-service Medical Board which determined that the Veteran's osteochondritis dissecans of the left knee had existed prior to service and was not aggravated during service. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111 (2012), there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. In this case, there is no notation of a preexisting left knee disorder on the Veteran's entrance examination into active duty. As such, the presumption of soundness attaches. The only evidence in the record that the Veteran had a pre-existing left knee disability is the Veteran's own report that his left knee pain began when he was 13 years old. The mere history provided by the Veteran of the pre-service existence of conditions does not rise to the level of demonstrating by clear and unmistakable evidence that the Veteran had a knee disability prior to military service. Moreover, given the Veteran's complaints of knee problems in service, the Board finds that VA also cannot demonstrate by clear and unmistakable evidence that any pre-existing knee disability was not aggravated by military service. As such, the presumption of soundness has not been rebutted and the Veteran's claim is one for direct service connection. VA is obliged to provide an examination 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 Board notes that the Veteran has been diagnosed with arthritis in his left knee, and has reported that he has had left knee pain since service. These factors meet the criteria for under McLean for providing the Veteran with a VA examination to determine whether his current knee disorder is related to service. On remand, the Veteran should be provided with such an examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the etiology of his left knee disorder. All indicated tests and studies should be conducted. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's left knee disorder was caused by or is etiologically related to any incident of active duty or manifested to a compensable degree within a year of discharge from active duty. The examiner must address the Veteran's contentions that he has experienced left knee pain since service. The examiner is advised that because no knee disability was noted on the Veteran's entrance examination, the examiner must presume that the Veteran did not have a pre-existing knee disability prior to military service, despite the history provided by the Veteran and the findings of the Medical Evaluation Board. The examiner must provide reasons for each opinion. 2. Readjudicate the issue on appeal. If the benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs