Citation Nr: 18141117 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-05 788 DATE: October 9, 2018 ORDER New and material evidence having been received, the petition to reopen the claim for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement) is granted. REMANDED Entitlement to service connection for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement) is remanded. Entitlement to service connection for a left knee replacement is remanded. FINDINGS OF FACT 1. In an October 1970 rating decision, the regional office (RO) denied service connection for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement). The Veteran did not perfect his appeal within the prescribed time limit and, therefore, the decision became final. 2. Evidence received since the October 1970 rating decision regarding the Veteran’s right knee relates to previously unestablished elements of the claim for service connection for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement) and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1970 rating decision that denied service connection for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement) is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim for service connection for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement) has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision that declined to reopen the Veteran’s claim for absence acquired right patella and semilunar cartilage (now claimed as a right knee replacement) because the evidence submitted since the prior final decision was not new and material. It also denied the Veteran’s claim for service connection for a left knee replacement. Although the RO declined to reopen the claim, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). New and Material evidence The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett, 83 F.3d 1383-84. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review it. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the new evidence relates specifically to the reason why the claim was last denied. Instead, it should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. In March 1970, the Veteran brought a claim for service connection for shrapnel wounds in both legs with amputation of the right fifth toe. After a VA examination in August 1970, the RO considered all available leg conditions in adjudicating the Veteran’s claim. In its October 1970 rating decision, the RO granted service connection for multiple shrapnel wounds of the right and left lower extremities and of amputation of the right little toe. It also considered the fact that the Veteran’s service records show that he had right patella and semilunar cartilage removed from his right knee prior to service. It denied service connection for this condition on the basis that an increase in the chronic level of disability of the right knee during service was not established. The Veteran did not file a Notice of Disagreement regarding this denial, and the October 1970 decision became final one year later in October 1971. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.302, 20.1103. When the RO denied the Veteran’s original claim, evidence available included the Veteran’s service treatment records and the August 1970 examination report. In March 2009, the Veteran filed a claim for service connection for a bilateral knee replacement. Given the prior denial of the Veteran’s absence acquired right patella and semilunar cartilage, his claim regarding the right knee replacement was properly interpreted as a petition to reopen his previous claim. Evidence received since the prior final decision includes the Veteran’s treatment records indicating that he had a right-knee replacement in October 2007. It also includes the Veteran’s written statement and hearing testimony setting out his assertion that his right knee replacement was required as a result of his service-connected shrapnel wounds of both lower extremities and, specifically, the stress he put on his right knee as a result. He also asserted that he was seen by a doctor in six-month intervals for two years following service at the Long Beach VAMC. This evidence is new, as it was not received by the RO in October 1970 when the prior final decision was rendered. Presumed credible, this evidence indicates that the Veteran has undergone a right-knee replacement that may be related to service. Thus, it at least triggers VA’s duty to assist. For these reasons, the Board finds that new and material evidence sufficient to reopen the Veteran’s claim has been received, and the claim is reopened. See 38 C.F.R. § 3.156. The Board finds, however, that a remand for additional development is necessary prior to rendering a decision on this matter. REASONS FOR REMAND Entitlement to service connection for a right knee replacement and a left knee replacement are remanded. VA must provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, and the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is low. McLendon, 20 Vet. App. at 83. Here, the medical evidence shows that the Veteran had a right knee replacement and a left knee replacement in 2007 and 2008 respectively. In addition, the Veteran’s service treatment records indicate that he experienced pain in both knees during basic training. Regarding his right knee, specifically, it was noted that the Veteran had cartilage removed prior to service, but that, in May 1968, the Veteran had “persistent knee pain” and he “complain[ed] of edema since entering basic [training].” In addition, in July 1968, it was noted that he “falls down,” his knee swells, and he experiences pain at night; and he was diagnosed with chronic synovitis. Thus, the “low” threshold required to trigger the duty to provide a VA examination has been met. Furthermore, the Veteran has asserted that his knee replacements were required because of his service-connected shrapnel wounds to his legs. Specifically, he testified that his doctor told him, shortly after service, that the strain caused by the pain of his shrapnel wounds would eventually cause arthritis in both legs. Arthritis was, in fact, the reason that his knees needed to be replaced. The Veteran’s treatment records include a letter from his private physician concluding that the osteoarthritis in both of the Veteran’s knees “does not appear” to have been caused by his injuries in service, as the osteoarthritis “appears to be classic.” However, the Board cannot rely on this medical opinion to decide the claim because it does not provide the degree of certainly required for medical nexus evidence. Bloom v. West, 12 Vet. App. 185, 187 (1999). Specifically, finding that the Veteran’s osteoarthritis that necessitated the knee replacements “does not appear” to have been caused by service, is too vague. In addition, it is not clear what is meant by the term “classic.” Moreover, the opinion is inadequate because it does not consider whether the need for knee replacements was otherwise linked to the knee pain that the Veteran experienced during service. Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a medical opinion is inadequate if it does not consider all raised theories of entitlement). Based on this and the fact that the Veteran has not yet been provided a VA examination for the present claims, the Board finds that a remand is warranted. Furthermore, the Board takes note of the Veteran’s testimony that he saw his doctor every six months for two years following service at the Long Beach VAMC. However, there are no medical records substantiating this assertion and it does not appear that VA took any steps to acquire these documents. On remand, VA must attempt to acquire these records. These matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from Long Beach VAMC for the period from March 1970 to December 1972. If these records are unavailable, the Veteran must be appropriately informed and notations of this unavailability and the attempts made to obtain these records must be documented in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s right knee replacement and left knee replacement. With regard to the Veteran’s right knee, the examiner must opine as to the following: (a.) Whether the cause for his right knee replacement clearly and unmistakably (undebatable) preexisted the Veteran’s service and, if it did clearly and unmistakably preexist service, whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s complaints of knee pain during service. (b.) Whether the cause of the Veteran’s right knee replacement is at least as likely as not (1) proximately due to the Veteran’s service-connected shrapnel wounds, or (2) aggravated beyond its natural progression thereby. Regarding the Veteran’s left knee, the examiner must opine as to the following: (a.) Whether the cause of the Veteran’s left knee replacement is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s complaints of knee pain during service. (b.) Whether the cause of the Veteran’s left knee replacement is at least as likely as not (1) proximately due to the Veteran’s service-connected shrapnel wounds, or (2) aggravated beyond its natural progression thereby. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel