Citation Nr: 18140516 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-28 019 DATE: October 3, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right hamstring disability is reopened. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a right hamstring disability is remanded. FINDINGS OF FACT 1. The September 2009 rating decision that denied the Veteran’s claims of entitlement to service connection for a right knee disability and a right hamstring disability was not appealed and is final. 2. Evidence received from the Veteran since the September 2009 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for a right knee disability and a right hamstring disability. CONCLUSIONS OF LAW 1. The September 2009 rating decision that denied service connection for a right knee disability and a right hamstring disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claims of entitlement to service connection for a right knee disability and a right hamstring disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from October 1994 to April 2006, including service in the Southwest Asia theater of operations during the Persian Gulf War. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas which declined to reopen previously denied claims of entitlement to service connection for a right knee and right hamstring disabilities. Whether new and material evidence has been received to reopen the claims of entitlement to service connection for a right knee disability and right hamstring disability Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means 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). New and material evidence is not required as to each previously unproven element of a claim. There is a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, a September 2009 rating decision denied the Veteran’s claim of entitlement to service connection for a right knee disability and a right hamstring disability on the basis that there was no link between the Veteran’s in-service right knee and hamstring injuries and his current disabilities. The Veteran appealed the decision, which was subsequently adjudicated in a November 2010 statement of the case (SOC). The Veteran did not submit a substantive appeal in response to the SOC, and the September 2009 rating decision therefore became final. The pertinent evidence of record at the time of that decision included the Veteran’s service treatment records (STRs), private treatment records, and VA examination reports from June 2009 and October 2010. The claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). In July 2011, the Veteran sought to reopen his claims. The evidence associated with the claims file since the September 2009 rating decision and November 2010 SOC includes additional written statements from the Veteran, as well as written statements from his wife, a friend, and a neighbor. All three described the severity of the Veteran’s right knee and hamstring problems and resulting functional impairment. The evidence also includes additional private treatment records. In an August 2011 treatment note, the Veteran reported that he injured his right knee and hamstring in service, and that he has experienced worsening pain ever since. Overall, the Board finds that the evidence submitted since the September 2009 rating decision is new and material. The Board notes that this evidence is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the Veteran’s claim because it suggests chronicity of symptomatology. Accordingly, reopening the Veteran’s claims of entitlement to service connection for a right knee disability and right hamstring disability is warranted. REASONS FOR REMAND Although the Board regrets the delay, remand is necessary to afford the Veteran an additional VA examination in connection with his claims. The Board finds that the examination reports currently of record are inadequate for rating purposes. In a September 2009 addendum opinion to the Veteran’s June 2009 examination, the examiner opined that the Veteran’s current disabilities were not related to service, merely stating that the Veteran’s current right knee and hamstring pain were “related to a recent injury and not to military service.” No rationale was provided. The October 2010 examiner determined that the Veteran did not have any residuals of an in-service hamstring injury; he did not mention the June 2009 examiner’s diagnosis of a right hamstring strain. Moreover, the examiner did not address the Veteran’s complaints of significant hamstring pain causing functional limitation. Even if the Veteran does not have a current diagnosable disability, VA must consider whether the Veteran has functional impairment for which service connection may be granted. See Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). With regard to the Veteran’s right knee, the examiner opined that the Veteran’s current right knee disability was unrelated to service because “there is no chronicity or link” between the in-service injury and current disability. However, more recent evidence suggests the Veteran has complained of knee pain consistently since discharge from service. Overall, the Board finds that a new examination is warranted to clarify the findings of the June 2009 and October 2010 examiners. Accordingly, the matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. With any necessary assistance from the Veteran, obtain and associate with the claims file any outstanding private medical treatment records. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right knee and right hamstring disabilities. The examiner must review the claims file and must note that review in the report. The rationale for all opinions expressed must be provided. Based on the examination and a review of the record, the examiner should respond to the following opinion: a) Please identify any right knee and/or right hamstring disability diagnosed during the current examination, or found at any point during the period on appeal (i.e. since July 2011). b) Is it at least as likely as not (50 percent or greater probability) that any such disability was caused or aggravated by any aspect of active service. c) If no clinical disability is identified, the examiner must indicate whether the Veteran’s reported right knee and/or hamstring pain conditions cause functional impairment of earning capacity. If so, the examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that such functional impairment was caused or aggravated by active service. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner should assume that the Veteran, his spouse, and his friends are credible historians and should consider their lay testimony concerning onset, history of treatment, and symptomatology. (Continued on the next page)   If the examiner is unable to offer the requested opinions, 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. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel