Citation Nr: 18139952 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-25 816 DATE: October 1, 2018 ORDER Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. FINDING OF FACT New and material evidence has not been received that relates to unestablished facts that are necessary to substantiate the claim for entitlement to service connection for a right knee disability. CONCLUSION OF LAW The criteria for whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107(b), 5108 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army February 1979 to August 1989 and from February 2003 to October 2003. The Veteran also had additional service in the United States Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right knee disability VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). “New” evidence is defined as evidence not previously submitted to agency decision makers. “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. 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The evidence received subsequent to the last final decision is presumed credible for the purposes of reopening a claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Warren v. Brown, 6 Vet. App. 4 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Furthermore, when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. In this case, the September 2004 rating decision denied service connection for the Veteran’s right knee condition on a direct basis. Subsequently, a March 2005 rating decision denied service connection for the Veteran’s right knee condition on a direct basis and on a secondary basis. The evidence at the time of these rating decisions did not show an event, disease or injury in service nor did the evidence does show that that the Veteran’s condition resulted from, or was aggravated by, a service-connected disability. Subsequently, in March 2015, the Board notes that the Veteran submitted a reserve component physical profile dated March 28, 2007, which shows bilateral chronic knee pain. The Board notes that following the issuance of the previously mentioned rating decisions, the Veteran has not alleged that he experienced a right knee injury or event occurring during an active duty or inactive duty status, nor has he submitted additional evidence related to a right knee injury or event that occurred in active duty or inactive duty status. The only new evidence received since March 2005 relevant to the Veteran’s claim for a right knee disability is a copy of the reserve component physical profile. The physical profile itself is new, however, the content is not because it has already been established that the Veteran has a right knee condition. In addition, while this document is a service record, it did not exist when VA previously denied the claim in 2004 and 2005, and therefore 38 C.F.R. § 3.156(c) is also not for application. Consequently, the Board finds that this evidence is cumulative and redundant of evidence already of record. Furthermore, this evidence merely goes to a current disability when the missing element is a nexus to service. The Veteran has failed to submit any new and material evidence to establish that any current right knee disability is related to a disease or injury that occurred during a period of active duty or inactive duty training. Thus, the Board finds that new and material evidence has not been received to reopen the claim for service connection for a right knee disability. As such, the Veteran’s appeal is denied. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. A review of the record indicates that the Veteran last received an examination for his knee disability in May 2015, and recent Court precedents require additional testing that is not of record. Moreover, the Board notes that several years of the Veteran’s private treatment records and VA treatment records have not been associated with the Veteran’s claims file. VA’s duty to assist includes providing a new medical examination when the available evidence is too old for an adequate evaluation of the current condition and the disability may have worsened. Thus, for the above stated reasons, the Board finds a remand is necessary to afford the Veteran a contemporaneous examination to determine the current severity of his disability. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). The matter is REMANDED for the following action: 1. Obtain the Veteran’s private treatment records and VA treatment records from May 2015 to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of his left knee disability. The claims file should be made available to and reviewed by the examiner. (A). Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. (B). In the event that that the Veteran reports that his disability results in flare-ups, the examiner should request the Veteran to identify the extent of functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran’s range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel