Citation Nr: 18144801 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-15 373A DATE: October 25, 2018 ORDER Whether new and material evidence exists to reopen the claim for service connection of a left leg and calf disorder is granted. REMANDED Entitlement to service connection for left leg and calf disorder. Entitlement to a rating in excess of 10 percent for right knee strain. Entitlement to a rating in excess of 10 percent for left knee strain. FINDINGS OF FACT 1. In a September 2011 decision, the RO denied service connection for left leg and calf disorder. The Veteran was notified of that decision and his appeal rights. He did not appeal the decision. 2. The evidence associated with the claims file since the September 2011 denial relates to an unestablished fact necessary to substantiate the claim for service connection for left leg and calf service disorder; such evidence is not cumulative or redundant of evidence already of record. CONCLUSIONS OF LAW 1. The September 2011 rating decision denying service connection for left leg and calf disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the September 2011 rating decision is new and material and the claim of entitlement to service connection for left leg and calf disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1998 to September 1998 and June 2000 to September 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2013 rating decision of the Roanoke, Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to increased ratings for bilateral foot disabilities, bilateral plantar fasciitis and bilateral hallux valgus, will be addressed by a separate Board decision. 1. Whether new and material evidence exists to reopen the claim for service connection of left leg and calf is granted. New and Material Evidence Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Here, the Veteran has submitted lay statements documenting leg pain and swelling, and the April 2013 VA examination was conducted after the RO denial. This evidence is new and material to reopen the claim. REASONS FOR REMAND 1. Entitlement to service connection for left leg and calf condition. 2. Entitlement to a rating in excess of 10 percent for right knee strain. 3. Entitlement to a rating in excess of 10 percent for left knee strain. The Veteran appeared for a VA examination in April 2013, more than five years ago. Bilateral knee strain was diagnosed. No pathology of a leg or calf condition was found. The Court has held that a veteran is entitled to a new VA examination where there is evidence that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). As well, 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. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA should have ordered a contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Here, a VA examination is required for the Veteran’s bilateral knees, to determine their present severity. Further, the Veteran has reported pain and swelling in the legs. The Court of Appeals for Veterans’ Claim recently found that “disability” in 38 U.S.C. § 1110 refers to the functional impairment of earning capacity, not the underlying cause of said disability, and that pain alone can be functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1363-64 (Fed. Cir. 2018). A new VA examination is required to opine whether the Veteran suffers from a diagnosis as to the left leg and calf, and as well, whether his left leg and calf pain causes functional impairment. The matters are REMANDED for the following action: 1. Obtain all outstanding VA clinical records and give the Veteran the opportunity to identify any private treatment records for association with the claims file. All records/responses received must be associated with the claims file. 2. Schedule the Veteran for an examination of the current severity of his bilateral knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the bilateral knees alone and discuss the effect of the Veteran’s bilateral knees on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left leg and calf diagnosis. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. (a.) Please also detail the functional impairment suffered by the Veteran as a result of his left leg and calf pain, to include the impact on his employability. (b.) If the Veteran reports flare-ups of pain regarding the left leg and calf, please detail the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of the flares. (Continued on the next page)   4. After the above is complete, readjudicate the Veteran’s claims. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev